FINALS CONSTITUTION I ACJUCO 1
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly
AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA,
ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B.
GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of
Finance, HON. GUILLERMO L. PARAYNO, JR., in his
capacity as Commissioner of the Bureau of Internal
Revenue, and HON. ALBERTO D. LINA, in his Capacity as
Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from
implementing and enforcing Republic Act (RA) 93352 (Attrition
Act of 2005).
RA 9335 was enacted to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC). The law intends to
encourage BIR and BOC officials and employees to exceed
their revenue targets by providing a system of rewards and
sanctions through the creation of a Rewards and Incentives
Fund (Fund) and a Revenue Performance Evaluation Board
(Board).3 It covers all officials and employees of the BIR and
the BOC with at least six months of service, regardless of
employment status.4
The Fund is sourced from the collection of the BIR and the
BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating
Committee (DBCC). Any incentive or reward is taken from the
fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of
tax revenue.5
The Boards in the BIR and the BOC are composed of the
Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget
and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development
Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy
Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated
by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and
guidelines for the allocation, distribution and release of the
Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls
short of the target; (3) terminate personnel in accordance with
the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including
the issuance of rules and regulations and (6) submit an annual
report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service
Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,8 to be
approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition
challenging the constitutionality of RA 9335, a tax reform
legislation. They contend that, by establishing a system of
rewards and incentives, the law "transform[s] the officials and
employees of the BIR and the BOC into mercenaries and
bounty hunters" as they will do their best only in consideration
of such rewards. Thus, the system of rewards and incentives
invites corruption and undermines the constitutionally
mandated duty of these officials and employees to serve the
people with utmost responsibility, integrity, loyalty and
efficiency.
Petitioners also claim that limiting the scope of the system of
rewards and incentives only to officials and employees of the
BIR and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or
distinction as to why such a system should not apply to officials
and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the
power to fix revenue targets to the President as it lacks a
sufficient standard on that matter. While Section 7(b) and (c) of
RA 9335 provides that BIR and BOC officials may be
dismissed from the service if their revenue collections fall short
of the target by at least 7.5%, the law does not, however, fix
the revenue targets to be achieved. Instead, the fixing of
revenue targets has been delegated to the President without
sufficient standards. It will therefore be easy for the President
to fix an unrealistic and unattainable target in order to dismiss
BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional
oversight committee on the ground that it violates the doctrine
of separation of powers. While the legislative function is
deemed accomplished and completed upon the enactment
and approval of the law, the creation of the congressional
oversight committee permits legislative participation in the
implementation and enforcement of the law.
In their comment, respondents, through the Office of the
Solicitor General, question the petition for being premature as
there is no actual case or controversy yet. Petitioners have not
asserted any right or claim that will necessitate the exercise of
this Court’s jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is
mere speculation and does not suffice to invalidate the law.
Seen in conjunction with the declared objective of RA 9335,
the law validly classifies the BIR and the BOC because the
functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law
provides a sufficient standard that will guide the executive in
the implementation of its provisions. Lastly, the creation of the
congressional oversight committee under the law enhances,
rather than violates, separation of powers. It ensures the
fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and
the implementing agencies.
After a careful consideration of the conflicting contentions of
the parties, the Court finds that petitioners have failed to
overcome the presumption of constitutionality in favor of RA
9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights,
an assertion of opposite legal claims susceptible of judicial
adjudication.10 A closely related requirement is ripeness, that
is, the question must be ripe for adjudication. And a
constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect
on the individual challenging it. 11Thus, to be ripe for judicial
FINALS CONSTITUTION I ACJUCO 2
adjudication, the petitioner must show a personal stake in the
outcome of the case or an injury to himself that can be
redressed by a favorable decision of the Court. 12
In this case, aside from the general claim that the dispute has
ripened into a judicial controversy by the mere enactment of
the law even without any further overt act, 13 petitioners fail
either to assert any specific and concrete legal claim or to
demonstrate any direct adverse effect of the law on them. They
are unable to show a personal stake in the outcome of this
case or an injury to themselves. On this account, their petition
is procedurally infirm.
This notwithstanding, public interest requires the resolution of
the constitutional issues raised by petitioners. The grave
nature of their allegations tends to cast a cloud on the
presumption of constitutionality in favor of the law. And where
an action of the legislative branch is alleged to have infringed
the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers
and employees must at all times be accountable to
the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism,
and justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder
not for his own personal gain but for the benefit of the public
for whom he holds it in trust. By demanding accountability and
service with responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they
are called upon to serve.
Public officers enjoy the presumption of regularity in the
performance of their duties. This presumption necessarily
obtains in favor of BIR and BOC officials and employees. RA
9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose
of encouraging the officials and employees of the BIR and the
BOC to exceed their revenue targets and optimize their
revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is
required to rebut it. It cannot be overturned by mere conjecture
or denied in advance (as petitioners would have the Court do)
specially in this case where it is an underlying principle to
advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn
BIR and BOC officials and employees into "bounty hunters and
mercenaries" is not only without any factual and legal basis; it
is also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear
and unequivocal breach of the Constitution, not a doubtful and
equivocal one.16 To invalidate RA 9335 based on petitioners’
baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which
approved it.
Public service is its own reward. Nevertheless, public officers
may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept
of public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court
validated a law which awards to officers of the customs as well
as other parties an amount not exceeding one-half of the net
proceeds of forfeitures in violation of the laws against
smuggling. Citing Dorsheimer v. United States,18 the U.S.
Supreme Court said:
The offer of a portion of such penalties to the
collectors is to stimulate and reward their zeal and
industry in detecting fraudulent attempts to evade
payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by
law be entitled to a reward when, as a consequence of their
zeal in the enforcement of tax and customs laws, they exceed
their revenue targets. In addition, RA 9335 establishes
safeguards to ensure that the reward will not be claimed if it
will be either the fruit of "bounty hunting or mercenary activity"
or the product of the irregular performance of official duties.
One of these precautionary measures is embodied in Section
8 of the law:
SEC. 8. Liability of Officials, Examiners and
Employees of the BIR and the BOC. – The officials,
examiners, and employees of the [BIR] and the
[BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or
misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be
held liable for any loss or injury suffered by any
business establishment or taxpayer as a result of
such violation, negligence, abuse, malfeasance,
misfeasance or failure to exercise extraordinary
diligence.
Equal Protection
Equality guaranteed under the equal protection clause is
equality under the same conditions and among persons
similarly situated; it is equality among equals, not similarity of
treatment of persons who are classified based on substantial
differences in relation to the object to be accomplished. 19When
things or persons are different in fact or circumstance, they
may be treated in law differently. In Victoriano v. Elizalde Rope
Workers’ Union,20 this Court declared:
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws
upon all citizens of the [S]tate. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman
and child should be affected alike by a statute.
Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such,
but on persons according to the circumstances
surrounding them. It guarantees equality, not identity
of rights. The Constitution does not require that
things which are different in fact be treated in law
as though they were the same. The equal
protection clause does not forbid discrimination
as to things that are different. It does not prohibit
legislation which is limited either in the object to
FINALS CONSTITUTION I ACJUCO 3
which it is directed or by the territory within which it
is to operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of
a valid classification is that it be reasonable,
which means that the classification should be
based on substantial distinctions which make for
real differences, that it must be germane to the
purpose of the law; that it must not be limited to
existing conditions only; and that it must apply
equally to each member of the class. This Court
has held that the standard is satisfied if the
classification or distinction is based on a
reasonable foundation or rational basis and is
not palpably arbitrary.
In the exercise of its power to make classifications for
the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a
wide range of discretion. It is not necessary that the
classification be based on scientific or marked
differences of things or in their relation. Neither is it
necessary that the classification be made with
mathematical nicety. Hence, legislative classification
may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does
not preclude the legislature from recognizing degrees
of evil or harm, and legislation is addressed to evils
as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification,
that is, a classification that has a reasonable foundation or
rational basis and not arbitrary.22 With respect to RA 9335, its
expressed public policy is the optimization of the revenue-
generation capability and collection of the BIR and the
BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives
and/or sanctions provided in the law should logically pertain to
the said agencies. Moreover, the law concerns only the BIR
and the BOC because they have the common distinct primary
function of generating revenues for the national government
through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The
Bureau of Internal Revenue, which shall be headed
by and subject to the supervision and control of the
Commissioner of Internal Revenue, who shall be
appointed by the President upon the
recommendation of the Secretary [of the DOF], shall
have the following functions:
(1) Assess and collect all taxes, fees and charges
and account for all revenues collected;
(2) Exercise duly delegated police powers for the
proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other
illegal economic activities;
(4) Exercise supervision and control over its
constituent and subordinate units; and
(5) Perform such other functions as may be provided
by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of
Customs which shall be headed and subject to the
management and control of the Commissioner of
Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the
DOF] and hereinafter referred to as Commissioner,
shall have the following functions:
(1) Collect custom duties, taxes and the
corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of
tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and
all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign
mails and the clearance of vessels and aircrafts in all
ports of entry;
(6) Administer all legal requirements that are
appropriate;
(7) Prevent and prosecute smuggling and other
illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its
constituent units;
(9) Perform such other functions as may be provided
by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They
principally perform the special function of being the
instrumentalities through which the State exercises one of its
great inherent functions – taxation. Indubitably, such
substantial distinction is germane and intimately related to the
purpose of the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA 9335 fully satisfy
the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative
power: (1) the completeness test and (2) the sufficient standard
test. A law is complete when it sets forth therein the policy to
be executed, carried out or implemented by the delegate. 26 It
lays down a sufficient standard when it provides adequate
FINALS CONSTITUTION I ACJUCO 4
guidelines or limitations in the law to map out the boundaries
of the delegate’s authority and prevent the delegation from
running riot.27 To be sufficient, the standard must specify the
limits of the delegate’s authority, announce the legislative
policy and identify the conditions under which it is to be
implemented.28
RA 9335 adequately states the policy and standards to guide
the President in fixing revenue targets and the implementing
agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the
State to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue
(BIR) and the Bureau of Customs (BOC) by providing
for a system of rewards and sanctions through the
creation of a Rewards and Incentives Fund and a
Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their
officials and employees to exceed their revenue
targets.
Section 4 "canalized within banks that keep it from
overflowing"29 the delegated power to the President to fix
revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards
and Incentives Fund, hereinafter referred to as the
Fund, is hereby created, to be sourced from the
collection of the BIR and the BOC in excess of their
respective revenue targets of the year, as
determined by the Development Budget and
Coordinating Committee (DBCC), in the following
percentages:
Excess of Collection of the Excess the Percent (%) of the Excess CollectionrevenuetoorAccrue
Revenue Targets Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20%majeure
The Fund shall be deemed automatically
appropriated the year immediately following the year
when the revenue collection target was exceeded
and shall be released on the same fiscal year.
Revenue targets shall refer to the original
estimated revenue collection expected of the BIR
and the BOC for a given fiscal year as stated in
the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to
Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies’ revenue
targets as allocated among its revenue districts in the
case of the BIR, and the collection districts in the
case of the BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue
collection expected respectively of the BIR and the BOC for a
given fiscal year as approved by the DBCC and stated in the
BESF submitted by the President to Congress. 30 Thus, the
determination of revenue targets does not rest solely on the
President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s
authority and identifies the conditions under which officials and
employees whose revenue collection falls short of the target by
at least 7.5% may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The
Board in the agency shall have the following powers
and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing
from service officials and employees whose
revenue collection falls short of the target by at
least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the
level of collection as provided in the rules and
regulations promulgated under this Act, subject to
civil service laws, rules and regulations and
compliance with substantive and procedural due
process: Provided, That the following exemptions
shall apply:
1. Where the district or area of
responsibility is newly-created, not
exceeding two years in operation, as has
no historical record of collection
performance that can be used as basis for
evaluation; and
2. Where the revenue or customs official or
employee is a recent transferee in the
middle of the period under consideration
unless the transfer was due to
nonperformance of revenue targets or
potential nonperformance of revenue
targets: Provided, however, That when the
district or area of responsibility covered by
customs
to officials
the or employees
has suffered from economic difficulties
brought about by natural calamities or force
or economic
of the remaining excesscauses as may be
determined by the Board, termination shall
be considered only after careful and proper
review by the Board.
(c) To terminate personnel in accordance with the
criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately
executory: Provided, further, That the application of
the criteria for the separation of an official or
employee from service under this Act shall be
without prejudice to the application of other
relevant laws on accountability of public officers
and employees, such as the Code of Conduct and
Ethical Standards of Public Officers and
Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of
officials and employees of the BIR and the BOC. The
guarantee of security of tenure only means that an employee
cannot be dismissed from the service for causes other than
those provided by law and only after due process is accorded
the employee.31 In the case of RA 9335, it lays down a
reasonable yardstick for removal (when the revenue collection
falls short of the target by at least 7.5%) with due consideration
of all relevant factors affecting the level of collection. This
standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action
FINALS CONSTITUTION I ACJUCO 5
under civil service laws.32 The action for removal is also subject
to civil service laws, rules and regulations and compliance with
substantive and procedural due process.
At any rate, this Court has recognized the following as
sufficient standards: "public interest," "justice and equity,"
"public convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of
the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee.
– There is hereby created a Joint Congressional
Oversight Committee composed of seven Members
from the Senate and seven Members from the House
of Representatives. The Members from the Senate
shall be appointed by the Senate President, with at
least two senators representing the minority. The
Members from the House of Representatives shall be
appointed by the Speaker with at least two members
representing the minority. After the Oversight
Committee will have approved the implementing
rules and regulations (IRR) it shall thereafter
become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was
created for the purpose of approving the implementing rules
and regulations (IRR) formulated by the DOF, DBM, NEDA,
BIR, BOC and CSC. On May 22, 2006, it approved the said
IRR. From then on, it became functus officio and ceased to
exist. Hence, the issue of its alleged encroachment on the
executive function of implementing and enforcing the law may
be considered moot and academic.
This notwithstanding, this might be as good a time as any for
the Court to confront the issue of the constitutionality of the
Joint Congressional Oversight Committee created under RA
9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice)
Puno on the concept of congressional oversight in Macalintal
v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces
all activities undertaken by Congress to enhance
its understanding of and influence over
the implementation of legislation it has enacted.
Clearly, oversight concerns post-
enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with
program objectives, (b) to determine whether
agencies are properly administered, (c) to
eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative
authority, and (d) to assess executive conformity
with the congressional perception of public
interest.
The power of oversight has been held to be intrinsic
in the grant of legislative power itself and integral to
the checks and balances inherent in a democratic
system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight
power with increased frequency to check the
perceived "exponential accumulation of power" by
the executive branch. By the beginning of the
20th century, Congress has delegated an enormous
amount of legislative authority to the executive
branch and the administrative agencies. Congress,
thus, uses its oversight power to make sure that the
administrative agencies perform their functions
within the authority delegated to them. x x x x x x x x
x
Categories of congressional oversight functions
The acts done by Congress purportedly in the
exercise of its oversight powers may be divided
into three categories,
namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser
intensity and continuity of attention to
administrative operations. Its primary
purpose is to determine economy and
efficiency of the operation of government
activities. In the exercise of legislative
scrutiny, Congress may request
information and report from the other
branches of government. It can give
recommendations or pass resolutions for
consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded
as a passive process of looking at the facts
that are readily available, congressional
investigation involves a more intense
digging of facts. The power of Congress to
conduct investigation is recognized by the
1987 Constitution under section 21, Article
VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which
Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a
continuing and informed awareness on the part of a
congressional committee regarding executive
operations in a given administrative area. While both
congressional scrutiny and investigation involve
inquiry into past executive branch actions in order to
influence future executive branch
performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-
making authority, and permits Congress to retain part
of that delegated authority.
Congress exercises supervision over the executive
agencies through its veto power. It typically utilizes
veto provisions when granting the President or an
executive agency the power to promulgate
regulations with the force of law. These provisions
require the President or an agency to present the
proposed regulations to Congress, which retains a
"right" to approve or disapprove any regulation
FINALS CONSTITUTION I ACJUCO 6
before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will
become a law after the expiration of a certain period
of time, only if Congress does not affirmatively
disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is
necessary to maintain the balance of power between
the legislative and the executive branches of
government as it offers lawmakers a way to delegate
vast power to the executive branch or to independent
agencies while retaining the option to cancel
particular exercise of such power without having to
pass new legislation or to repeal existing law. They
contend that this arrangement promotes democratic
accountability as it provides legislative check on the
activities of unelected administrative agencies. One
proponent thus explains:
It is too late to debate the merits of this
delegation policy: the policy is too deeply
embedded in our law and practice. It
suffices to say that the complexities of
modern government have often led
Congress-whether by actual or perceived
necessity- to legislate by declaring broad
policy goals and general statutory
standards, leaving the choice of policy
options to the discretion of an executive
officer. Congress articulates legislative
aims, but leaves their implementation to the
judgment of parties who may or may not
have participated in or agreed with the
development of those aims. Consequently,
absent safeguards, in many instances the
reverse of our constitutional scheme could
be effected: Congress proposes, the
Executive disposes. One safeguard, of
course, is the legislative power to enact
new legislation or to change existing law.
But without some means of overseeing
post enactment activities of the executive
branch, Congress would be unable to
determine whether its policies have been
implemented in accordance with legislative
intent and thus whether legislative
intervention is appropriate.
Its opponents, however, criticize the legislative
veto as undue encroachment upon the executive
prerogatives. They urge that any post-enactment
measures undertaken by the legislative branch
should be limited to scrutiny and investigation;
any measure beyond that would undermine the
separation of powers guaranteed by the
Constitution. They contend that legislative veto
constitutes an impermissible evasion of the
President’s veto authority and intrusion into the
powers vested in the executive or judicial branches
of government. Proponents counter that legislative
veto enhances separation of powers as it prevents
the executive branch and independent agencies from
accumulating too much power. They submit that
reporting requirements and congressional committee
investigations allow Congress to scrutinize only the
exercise of delegated law-making authority. They do
not allow Congress to review executive proposals
before they take effect and they do not afford the
opportunity for ongoing and binding expressions of
congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those
enacted by the executive branch pursuant to a
delegation of authority by Congress. They further
argue that legislative veto "is a necessary response
by Congress to the accretion of policy control by
forces outside its chambers." In an era of delegated
authority, they point out that legislative veto "is the
most efficient means Congress has yet devised to
retain control over the evolution and implementation
of its policy as declared by statute."
In Immigration and Naturalization Service v.
Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case
arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to §
244(c)(1) of the Immigration and Nationality Act. The
United States House of Representatives passed a
resolution vetoing the suspension pursuant to §
244(c)(2) authorizing either House of Congress, by
resolution, to invalidate the decision of the executive
branch to allow a particular deportable alien to
remain in the United States. The immigration judge
reopened the deportation proceedings to implement
the House order and the alien was ordered deported.
The Board of Immigration Appeals dismissed the
alien’s appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United
States Court of Appeals for Ninth Circuit held that the
House was without constitutional authority to order
the alien’s deportation and that § 244(c)(2) violated
the constitutional doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared §
244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and
instead held that the provision violates the
presentment clause and bicameralism. It held that
the one-house veto was essentially legislative in
purpose and effect. As such, it is subject to the
procedures set out in Article I of the Constitution
requiring the passage by a majority of both Houses
and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court
upheld, in memorandum decision, two lower court
decisions invalidating the legislative veto provisions
in the Natural Gas Policy Act of 1978 and the Federal
Trade Commission Improvement Act of 1980.
Following this precedence, lower courts invalidated
statutes containing legislative veto provisions
although some of these provisions required the
approval of both Houses of Congress and thus met
the bicameralism requirement of Article I. Indeed,
some of these veto provisions were not even
exercised.35(emphasis supplied)
In Macalintal, given the concept and configuration of the power
of congressional oversight and considering the nature and
powers of a constitutional body like the Commission on
Elections, the Court struck down the provision in RA 9189 (The
Overseas Absentee Voting Act of 2003) creating a Joint
Congressional Committee. The committee was tasked not only
to monitor and evaluate the implementation of the said law but
also to review, revise, amend and approve the IRR
promulgated by the Commission on Elections. The Court held
that these functions infringed on the constitutional
independence of the Commission on Elections. 36
With this backdrop, it is clear that congressional oversight is
not unconstitutional per se, meaning, it neither necessarily
FINALS CONSTITUTION I ACJUCO 7
constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation
of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the over-
accumulation of power in the executive branch.
However, to forestall the danger of congressional
encroachment "beyond the legislative sphere," the Constitution
imposes two basic and related constraints on Congress. 37 It
may not vest itself, any of its committees or its members with
either executive or judicial power.38 And, when it exercises its
legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified under the
Constitution,39 including the procedure for enactment of laws
and presentment.
Thus, any post-enactment congressional measure such as this
should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of
departments to appear before and be heard by either
of its Houses on any matter pertaining to their
departments and its power of confirmation40 and
(2) investigation and monitoring41 of the
implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation. 42
Any action or step beyond that will undermine the separation
of powers guaranteed by the Constitution. Legislative vetoes
fall in this class.
Legislative veto is a statutory provision requiring the President
or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which,
by itself or through a committee formed by it, retains a "right"
or "power" to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inward-
turning delegation designed to attach a congressional leash
(other than through scrutiny and investigation) to an agency to
which Congress has by law initially delegated broad
powers.43 It radically changes the design or structure of the
Constitution’s diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own
laws.44
Congress has two options when enacting legislation to define
national policy within the broad horizons of its legislative
competence.45 It can itself formulate the details or it can assign
to the executive branch the responsibility for making necessary
managerial decisions in conformity with those standards. 46 In
the latter case, the law must be complete in all its essential
terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the
concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details
(supplementary rule-making) or ascertain facts necessary to
bring the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies
to implement and interpret the law which they are entrusted to
enforce have the force of law and are entitled to
respect.49 Such rules and regulations partake of the nature of
a statute50 and are just as binding as if they have been written
in the statute itself. As such, they have the force and effect of
law and enjoy the presumption of constitutionality and legality
until they are set aside with finality in an appropriate case by a
competent court.51 Congress, in the guise of assuming the role
of an overseer, may not pass upon their legality by subjecting
them to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based
on a determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto
itself, a power exclusively vested in this Court by the
Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law
be subjected to approval by Congress as a condition for their
effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment. 52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in
the Congress of the Philippines which shall
consist of a Senate and a House of
Representatives, except to the extent reserved to
the people by the provision on initiative and
referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and
repeal laws)53 is vested in Congress which consists of two
chambers, the Senate and the House of Representatives. A
valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by
one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional
committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution
provides:
Section 27. (1) Every bill passed by the Congress
shall, before it becomes a law, be presented to
the President. If he approves the same, he shall sign
it, otherwise, he shall veto it and return the same with
his objections to the House where it originated, which
shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of
such House shall agree to pass the bill, it shall be
sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the
votes of each House shall be determined
by yeas or nays, and the names of the members
voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill
to the House where it originated within thirty days
after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis
supplied)
Every bill passed by Congress must be presented to the
President for approval or veto. In the absence of presentment
to the President, no bill passed by Congress can become a
law. In this sense, law-making under the Constitution is a joint
act of the Legislature and of the Executive. Assuming that
legislative veto is a valid legislative act with the force of law, it
FINALS CONSTITUTION I ACJUCO 8
cannot take effect without such presentment even if approved
by both chambers of Congress.
In sum, two steps are required before a bill becomes a law.
First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by
the President.55 As summarized by Justice Isagani Cruz56 and
Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for
the approval of bills:
A bill is introduced by any member of the House of
Representatives or the Senate except for some
measures that must originate only in the former
chamber.
The first reading involves only a reading of the
number and title of the measure and its referral by
the Senate President or the Speaker to the proper
committee for study.
The bill may be "killed" in the committee or it may be
recommended for approval, with or without
amendments, sometimes after public hearings are
first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into
one bill under common authorship or as a committee
bill.
Once reported out, the bill shall be calendared for
second reading. It is at this stage that the bill is read
in its entirety, scrutinized, debated upon and
amended when desired. The second reading is the
most important stage in the passage of a bill.
The bill as approved on second reading is printed in
its final form and copies thereof are distributed at
least three days before the third reading. On the third
reading, the members merely register their votes and
explain them if they are allowed by the rules. No
further debate is allowed.
Once the bill passes third reading, it is sent to the
other chamber, where it will also undergo the three
readings. If there are differences between the
versions approved by the two chambers, a
conference committee58 representing both Houses
will draft a compromise measure that if ratified by the
Senate and the House of Representatives will then
be submitted to the President for his consideration.
The bill is enrolled when printed as finally approved
by the Congress, thereafter authenticated with the
signatures of the Senate President, the Speaker, and
the Secretaries of their respective chambers…59
The President’s role in law-making.
The final step is submission to the President for
approval. Once approved, it takes effect as law after
the required publication.60
Where Congress delegates the formulation of rules to
implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be
complete in all its essential terms and conditions when it leaves
the hands of the legislature. And it may be deemed to have left
the hands of the legislature when it becomes effective because
it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language
of the statute. Subject to the indispensable requisite of
publication under the due process clause,61 the determination
as to when a law takes effect is wholly the prerogative of
Congress.62 As such, it is only upon its effectivity that a law
may be executed and the executive branch acquires the duties
and powers to execute the said law. Before that point, the role
of the executive branch, particularly of the President, is limited
to approving or vetoing the law.63
From the moment the law becomes effective, any provision of
law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus
unconstitutional. Under this principle, a provision that requires
Congress or its members to approve the implementing rules of
a law after it has already taken effect shall be unconstitutional,
as is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of the
executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be
struck down as unconstitutional. While there may be similar
provisions of other laws that may be invalidated for failure to
pass this standard, the Court refrains from invalidating them
wholesale but will do so at the proper time when an appropriate
case assailing those provisions is brought before us. 64
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other
provisions of the law? Will it render the entire law
unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of
this Act is declared invalid by a competent court, the
remainder of this Act or any provision not affected by
such declaration of invalidity shall remain in force and
effect.
In Tatad v. Secretary of the Department of Energy,65 the Court
laid down the following rules:
The general rule is that where part of a statute is void
as repugnant to the Constitution, while another part
is valid, the valid portion, if separable from the invalid,
may stand and be enforced. The presence of a
separability clause in a statute creates the
presumption that the legislature intended
separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be
so far independent of the invalid portion that it is fair
to presume that the legislature would have enacted it
by itself if it had supposed that it could not
constitutionally enact the other. Enough must remain
to make a complete, intelligible and valid statute,
which carries out the legislative intent. x x x
The exception to the general rule is that when the
parts of a statute are so mutually dependent and
connected, as conditions, considerations,
inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as
a whole, the nullity of one part will vitiate the rest. In
making the parts of the statute dependent,
conditional, or connected with one another, the
legislature intended the statute to be carried out as a
whole and would not have enacted it if one part is
void, in which case if some parts are unconstitutional,
FINALS CONSTITUTION I ACJUCO 9

all the other provisions thus dependent, conditional,

or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the

legislature to isolate and detach any invalid provision from the
other provisions so that the latter may continue in force and
effect. The valid portions can stand independently of the invalid
section. Without Section 12, the remaining provisions still
constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation
capability and collection of the BIR and the BOC by providing
for a system of rewards and sanctions through the Rewards
and Incentives Fund and a Revenue Performance Evaluation
Board.

To be effective, administrative rules and regulations must be

published in full if their purpose is to enforce or implement
existing law pursuant to a valid delegation. The IRR of RA 9335
were published on May 30, 2006 in two newspapers of general
circulation66 and became effective 15 days thereafter.67 Until
and unless the contrary is shown, the IRR are presumed valid
and effective even without the approval of the Joint
Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY

GRANTED. Section 12 of RA 9335 creating a Joint
Congressional Oversight Committee to approve the
implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the
remaining provisions of RA 9335 is UPHELD. Pursuant to
Section 13 of RA 9335, the rest of the provisions remain in
force and effect.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 10
[G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint
Committee of Congress to Canvass the Votes Cast for
President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator
Aquilino Q. Pimentel, Jr. seeks a judgment declaring null and
void the continued existence of the Joint Committee of
Congress (Joint Committee) to determine the authenticity and
due execution of the certificates of canvass and preliminarily
canvass the votes cast for Presidential and Vice-Presidential
candidates in the May 10, 2004 elections following the
adjournment of Congress sine die on June 11, 2004. The
petition corollarily prays for the issuance of a writ of prohibition
directing the Joint Committee to cease and desist from
conducting any further proceedings pursuant to the Rules of
the Joint Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June
11, 2004 by the Twelfth Congress of its last regular session,
[its] term ... terminated and expired on the said day and the
said Twelfth Congress serving the term 2001 to 2004 passed
out of legal existence." Henceforth, petitioner goes on, "all
pending matters and proceedings terminate upon the
expiration of ... Congress." To advance this view, he relies on
"legislative procedure, precedent or practice [as] borne [out] by
the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to
put to rest all questions regarding the regularity, validity or
constitutionality of the canvassing of votes fro President and
Vice-President in the recently concluded national elections,
this Court assumes jurisdiction over the instant petition
pursuant to its power and duty "to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government" under Section 1 of Article
VIII of the Constitution and its original jurisdiction over petitions
for prohibition under Section 5 of the same Article.
After a considered and judicious examination of the arguments
raised by petitioner as well as those presented in the
Comments filed by the Solicitor General and respondent Joint
Committee, this Court finds that the petition has absolutely no
basis under the Constitution and must, therefore, be
dismissed.
Petitioner's claim that his arguments are buttressed by
"legislative procedure, precedent or practice [as] borne [out] by
the rules of both Houses of Congress" is directly contradicted
by Section 42 of Rule XIV of the Rules adopted by the Senate,
of which he is an incumbent member. This section clearly
provides that the Senate shall convene in joint
session during any voluntary or compulsory recess to
canvass the votes for President and Vice-President not
later than thirty days after the day of the elections in
accordance with Section 4, Article VII of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate
Panel for respondent Joint Committee and that of the Office of
the Solicitor General, the precedents set by the 1992 and 1998
Presidential Elections do not support the move to stop the
ongoing canvassing by the Joint Committee, they citing the
observations of former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of
Congress adjourned sine die on May 25, 1992. On June 16,
1992, the Joint Committee finished tallying the votes for
President and Vice-President.[1] Thereafter, on June 22, 1992,
the Eighth Congress convened in joint public session as the
National Board of Canvassers, and on even date proclaimed
Fidel V. Ramos and Joseph Ejercito Estrada as President and
Vice-President, respectively.[2]
Upon the other hand, during the 1998 Presidential elections,
both Houses of Congress adjourned sine dieon May 25, 1998.
The Joint Committee completed the counting of the votes for
President and Vice-President on May 27, 1998.[3] The Tenth
Congress then convened in joint public session on May 29,
1998 as the National Board of Canvassers and proclaimed
Joseph Ejercito Estrada as President and Gloria Macapagal-
Arroyo as President and Vice-President, respectively.[4]
As for petitioner's argument that "the [e]xistence and
[p]roceedings [o]f the Joint Committee of Congress [a]re
[i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the
[a]djournment [s]ine [d]ie [o]f [b]oth Houses of Congress [o]f
[t]heir [r]egular [s]essions on June 11, 2004," he cites in
support thereof Section 15, Article VI of the Constitution which
reads:
Sec. 15. The Congress shall convene once every year on
the fourth Monday of July for its regular session, unless a
different date is fixed by law, and shall continue to be in
session for such number of days as it may determine until
thirty days before the opening of its next regular session,
exclusive of Saturdays, Sundays, and legal holidays. The
President may call a special session at any time.
Contrary to petitioner's argument, however, the term of
the present Twelfth Congress did not terminate and expire
upon the adjournment sine die of the regular session of
both Houses on June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner
does not pertain to the term of Congress, but to its regular
annual legislative sessions and the mandatory 30-day
recess before the opening of its next regular session (subject
to the power of the President to call a special session at any
time).
Section 4 of Article VIII also of the Constitution clearly provides
that "[t]he term of office of the Senators shall be six years and
shall commence, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election." Similarly,
Section 7 of the same Article provides that "[t]he Members of
the House of Representatives shall be elected for
a term of three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of June next
following their election." Consequently, there being no law to
the contrary, until June 30, 2004, the present Twelfth Congress
to which the present legislators belong cannot be said to have
"passed out of legal existence."
The legislative functions of the Twelfth Congress may have
come to a close upon the final adjournment of its regular
sessions on June 11, 2004, but this does not affect its non-
legislative functions, such as that of being the National
FINALS CONSTITUTION I ACJUCO 11

Board of Canvassers. In fact, the joint public session of

both Houses of Congress convened by express directive
of Section 4, Article VII of the Constitution to canvass the
votes for and to proclaim the newly elected President and
Vice-President has not, and cannot, adjourn sine dieuntil
it has accomplished its constitutionally mandated tasks.
For only when a board of canvassers has completed its
functions is it rendered functus officio. Its membership
may change, but it retains its authority as a board until it
has accomplished its purposes. (Pelayo v. Commission on
Elections, 23 SCRA 1374, 1385 [1968], citing Bautista v.
Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission
on Elections, L-28392, January 29 1968)

Since the Twelfth Congress has not yet completed its non-
legislative duty to canvass the votes and proclaim the duly
elected President and Vice-President, its existence as the
National Board of Canvassers, as well as that of the Joint
Committee to which it referred the preliminary tasks of
authenticating and canvassing the certificates of canvass, has
not become functus officio.

In sum, despite the adjournment sine die of Congress, there is

no legal impediment to the Joint Committee completing the
tasks assigned to it and transmitting its report for the approval
of the joint public session of both Houses of Congress, which
may reconvene without need of call by the President to a
special session.

WHEREFORE, the instant Petition is hereby DISMISSED.

FINALS CONSTITUTION I ACJUCO 12
G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION,
INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President.
Petitioner Joseph Ejercito Estrada alleges that he is the
President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are
important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While
the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy,
Philippine style.
First, we take a view of the panorama of events that
precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito
Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some ten (10)
million Filipinos voted for the petitioner believing he would
rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June
30, 1998.
From the beginning of his term, however, petitioner was
plagued by a plethora of problems that slowly but surely eroded
his popularity. His sharp descent from power started on
October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson,
a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos
from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next
day, October 5, 2000, Senator Teofisto Guingona, Jr., then the
Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused the petitioner
of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He
also charged that the petitioner took from Governor Singson
P70 million on excise tax on cigarettes intended for Ilocos Sur.
The privilege speech was referred by then Senate President
Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then
headed by Senator Renato Cayetano) for joint investigation. 2
The House of Representatives did no less. The House
Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the exposẻ
of Governor Singson. On the other hand, Representatives
Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On
October 11, Archbishop Jaime Cardinal Sin issued a pastoral
statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from the
presidency as he had lost the moral authority to govern. 3 Two
days later or on October 13, the Catholic Bishops Conference
of the Philippines joined the cry for the resignation of the
petitioner.4 Four days later, or on October 17, former President
Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October
12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services 6 and later asked
for petitioner's resignation.7 However, petitioner strenuously
held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic
advisers, members of the Council of Senior Economic
Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente
Paterno and Washington Sycip.8 On November 2, Secretary
Mar Roxas II also resigned from the Department of Trade and
Industry.9 On November 3, Senate President Franklin Drilon,
and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.10
The month of November ended with a big bang. In a
tumultuous session on November 13, House Speaker Villar
transmitted the Articles of Impeachment 11 signed by 115
representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker
Villar was unseated by Representative Fuentebella. 12 On
November 20, the Senate formally opened the impeachment
trial of the petitioner. Twenty-one (21) senators took their oath
as judges with Supreme Court Chief Justice Hilario G. Davide,
Jr., presiding.13
The political temperature rose despite the cold December. On
December 7, the impeachment trial started.14 The battle royale
was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority
Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales,
Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar
Rodriguez, Clavel Martinez and Antonio Nachura. They were
assisted by a battery of private prosecutors led by now
Secretary of Justice Hernando Perez and now Solicitor
General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of
the House Raul Daza, Atty. Siegfried Fortun and his brother,
Atty. Raymund Fortun. The day to day trial was covered by live
TV and during its course enjoyed the highest viewing rating. Its
high and low points were the constant conversational piece of
the chattering classes. The dramatic point of the December
hearings was the testimony of Clarissa Ocampo, senior vice
president of Equitable-PCI Bank. She testified that she was
one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500
million investment agreement with their bank on February 4,
2000.15
After the testimony of Ocampo, the impeachment trial was
adjourned in the spirit of Christmas. When it resumed on
January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served
as petitioner's Secretary of Finance took the witness stand. He
alleged that the petitioner jointly owned BW Resources
FINALS CONSTITUTION I ACJUCO 13
Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16,
when by a vote of 11-1017 the senator-judges ruled against the
opening of the second envelope which allegedly contained
evidence showing that petitioner held P3.3 billion in a secret
bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President. 18 The
ruling made at 10:00 p.m. was met by a spontaneous outburst
of anger that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and speeches
full of sulphur were delivered against the petitioner and the
eleven (11) senators.
On January 17, the public prosecutors submitted a letter to
Speaker Fuentebella tendering their collective resignation.
They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. 19Senator Raul
Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives
shall have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion. 20
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding
lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine
to symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the
physics of persuasion, attracted more and more people. 21
On January 19, the fall from power of the petitioner appeared
inevitable. At 1:20 p.m., the petitioner informed Executive
Secretary Edgardo Angara that General Angelo Reyes, Chief
of Staff of the Armed Forces of the Philippines, had defected.
At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National
Defense Orlando Mercado and General Reyes, together with
the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and
Ramos and hundreds of thousands of cheering demonstrators,
General Reyes declared that "on behalf of Your Armed Forces,
the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a
similar stunning announcement. 24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs
quickly resigned from their posts.25 Rallies for the resignation
of the petitioner exploded in various parts of the country. To
stem the tide of rage, petitioner announced he was ordering
his lawyers to agree to the opening of the highly controversial
second envelope.26There was no turning back the tide. The
tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m.,
the first round of negotiations for the peaceful and orderly
transfer of power started at Malacañang'' Mabini Hall, Office of
the Executive Secretary. Secretary Edgardo Angara, Senior
Deputy Executive Secretary Ramon Bagatsing, Political
Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and
Atty. Macel Fernandez, head of the Presidential Management
Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of
Justice Hernando Perez.27 Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news
broke out that Chief Justice Davide would administer the oath
to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the
oath to respondent Arroyo as President of the Philippines. 28 At
2:30 p.m., petitioner and his family hurriedly left Malacañang
Palace.29 He issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many
other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality
of her proclamation as President, I do not wish to be
a factor that will prevent the restoration of unity and
order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing
process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any
future challenges that may come ahead in the same
service of our country.
I call on all my supporters and followers to join me in
to promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved
people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he
signed the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of
the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers
and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at
8:30 a.m. on January 20.23 Another copy was transmitted to
Senate President Pimentel on the same day although it was
received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent
Arroyo immediately discharged the powers the duties of the
Presidency. On the same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-SC, to wit:
FINALS CONSTITUTION I ACJUCO 14
"A.M. No. 01-1-05-SC — In re: Request of Vice
President Gloria Macapagal-Arroyo to Take her Oath
of Office as President of the Republic of the
Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of
the Philippines, addressed to the Chief Justice and
confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the
authority given by the twelve (12) members of the
Court then present to the Chief Justice on January
20, 2001 to administer the oath of office of Vice
President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition
of any justiciable case that may be filed by a proper
party."
Respondent Arroyo appointed members of her Cabinet as well
as ambassadors and special envoys. 34 Recognition of
respondent Arroyo's government by foreign governments
swiftly followed. On January 23, in a reception or vin d'
honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent
a telephone call from the White House conveying US
recognition of her government.36
On January 24, Representative Feliciano Belmonte was
elected new Speaker of the House of Representatives. 37The
House then passed Resolution No. 175 "expressing the full
support of the House of Representatives to the administration
of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives to the
assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's
goals under the Constitution."39
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law
the Political Advertising ban and Fair Election Practices Act. 41
On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.42 The next day, February
7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam
Defensor-Santiago, Juan Ponce Enrile, and John Osmena
voted "yes" with reservations, citing as reason therefor the
pending challenge on the legitimacy of respondent Arroyo's
presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent. 44 The House
of Representatives also approved Senator Guingona's
nomination in Resolution No. 178.45 Senator Guingona, Jr.
took his oath as Vice President two (2) days later. 46
On February 7, the Senate passed Resolution No. 83 declaring
that the impeachment court is functus officio and has been
terminated.47 Senator Miriam Defensor-Santiago stated "for
the record" that she voted against the closure of the
impeachment court on the grounds that the Senate had failed
to decide on the impeachment case and that the resolution left
open the question of whether Estrada was still qualified to run
for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President
Arroyo's public acceptance rating jacked up from 16% on
January 20, 2001 to 38% on January 26, 2001. 49 In another
survey conducted by the ABS-CBN/SWS from February 2-7,
2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner
Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance
of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her
trust rating increased to 52%. Her presidency is accepted by
majorities in all social classes: 58% in the ABC or middle-to-
upper classes, 64% in the D or mass class, and 54% among
the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal
problems appeared in clusters. Several cases previously filed
against him in the Office of the Ombudsman were set in
motion. These are: (1) OMB Case No. 0-00-1629, filed by
Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the
Volunteers Against Crime and Corruption on November 17,
2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct, violation of the Code of Conduct
for Government Employees, etc; (3) OMB Case No. 0-00-1755
filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-
1756 filed by Romeo Capulong, et al., on November 28, 2000
for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by
Leonard de Vera, et al., on November 28, 2000 for bribery,
plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by
Ernesto B. Francisco, Jr. on December 4, 2000 for plunder,
graft and corruption.
A special panel of investigators was forthwith created by the
respondent Ombudsman to investigate the charges against the
petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz:
Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On February 5,
petitioner filed with this Court GR No. 146710-15, a petition for
prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting
any further proceedings in Case Nos. OMB 0-00-1629, 1754,
1755, 1756, 1757 and 1758 or in any other criminal complaint
that may be filed in his office, until after the term of petitioner
as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming
petitioner to be the lawful and incumbent President of the
Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her
oath as and to be holding the Office of the President, only in
an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the
same day, February 6, required the respondents "to comment
thereon within a non-extendible period expiring on 12 February
2001." On February 13, the Court ordered the consolidation of
GR Nos. 146710-15 and GR No. 146738 and the filing of the
respondents' comments "on or before 8:00 a.m. of February
15."
On February 15, the consolidated cases were orally argued in
a four-hour hearing. Before the hearing, Chief Justice Davide,
FINALS CONSTITUTION I ACJUCO 15
Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator
Rene A. Saguisag. They debunked the charge of counsel
Saguisag that they have "compromised themselves by
indicating that they have thrown their weight on one side" but
nonetheless inhibited themselves. Thereafter, the parties were
given the short period of five (5) days to file their memoranda
and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion
for copies of resolution and press statement for "Gag Order"
on respondent Ombudsman filed by counsel for petitioner in
G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue
a resolution on January 20, 2001 declaring the office
of the President vacant and that neither did the Chief
Justice issue a press statement justifying the alleged
resolution;
(2) to order the parties and especially their counsel
who are officers of the Court under pain of being cited
for contempt to refrain from making any comment or
discussing in public the merits of the cases at bar
while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective
immediately enjoining the respondent Ombudsman
from resolving or deciding the criminal cases pending
investigation in his office against petitioner, Joseph
E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent
Ombudsman may immediately resolve the cases
against petitioner Joseph E. Estrada seven (7) days
after the hearing held on February 15, 2001, which
action will make the cases at bar moot and
academic."53
The parties filed their replies on February 24. On this date, the
cases at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I formulations is inextricable from the case at bar,
Whether the petitions present a justiciable
controversy.
II
Assuming that the petitions present a justiciable
controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an
Acting President.
III
Whether conviction in the impeachment proceedings
is a condition precedent for the criminal prosecution
of petitioner Estrada. In the negative and on the
assumption that petitioner is still President, whether
he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should
be enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases at bar involve a political question
Private respondents54 raise the threshold issue that the cases
at bar pose a political question, and hence, are beyond the
jurisdiction of this Court to decide. They contend that shorn of
its embroideries, the cases at bar assail the "legitimacy of the
Arroyo administration." They stress that respondent Arroyo
ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic;
that she has exercised the powers of the presidency and that
she has been recognized by foreign governments. They submit
that these realities on ground constitute the political thicket,
which the Court cannot enter.
We reject private respondents' submission. To be sure, courts
here and abroad, have tried to lift the shroud on political
question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political
question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be
refined in the mills of constitutional law. 55 In the United States,
the most authoritative guidelines to determine whether a
question is political were spelled out by Mr. Justice Brennan in
the 1962 case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the issue
to a coordinate political department or a lack of
judicially discoverable and manageable standards
for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of embarrassment
from multifarious pronouncements by various
departments on question. Unless one of these
there should be no dismissal for non justiciability on
the ground of a political question's presence. The
doctrine of which we treat is one of 'political
questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously
confronted with cases calling for a firmer delineation of the
inner and outer perimeters of a political question. 57 Our leading
case is Tanada v. Cuenco,58 where this Court, through former
Chief Justice Roberto Concepcion, held that political questions
refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great
degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of
judicial review of this court not only to settle actual
controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary
has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction. 60With the new
FINALS CONSTITUTION I ACJUCO 16
provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing
nothing. In sync and symmetry with this intent are other
provisions of the 1987 Constitution trimming the so called
political thicket. Prominent of these provisions is section 18 of
Article VII which empowers this Court in limpid language to "x
x x review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ (of
habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon
C. Aquino, et al.61 and related cases62 to support their thesis
that since the cases at bar involve the legitimacy of the
government of respondent Arroyo, ergo, they present a
political question. A more cerebral reading of the cited cases
will show that they are inapplicable. In the cited cases, we held
that the government of former President Aquino was the
result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom
Constitution63 declared that the Aquino government was
installed through a direct exercise of the power of the Filipino
people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the
legitimacy of a government sired by a successful revolution by
people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the
EDSA Shrine is the oath under the 1987 Constitution. 64 In her
oath, she categorically swore to preserve and defend the
1987 Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the authority
of the 1987 Constitution.1âwphi1.nêt
In fine, the legal distinction between EDSA People Power I
EDSA People Power II is clear. EDSA I involves the exercise
of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power
of freedom of speech and freedom of assembly to petition
the government for redress of grievances which only
affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review,
but EDSA II is intra constitutional and the resignation of the
sitting President that it caused and the succession of the Vice
President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the
freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power
II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our
1898 revolution against Spain. Our national hero, Jose P.
Rizal, raised the clarion call for the recognition of freedom of
the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which
is the work of the revolutionary Congress in 1898, provided in
its Bill of Rights that Filipinos shall not be deprived (1) of the
right to freely express his ideas or opinions, orally or in writing,
through the use of the press or other similar means; (2) of the
right of association for purposes of human life and which are
not contrary to public means; and (3) of the right to send
petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the
Instruction to the Second Philippine Commission of April 7,
1900 issued by President McKinley, it is specifically provided
"that no law shall be passed abridging the freedom of speech
or of the press or of the rights of the people to peaceably
assemble and petition the Government for redress of
grievances." The guaranty was carried over in the Philippine
Bill, the Act of Congress of July 1, 1902 and the Jones Law,
the Act of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935
Constitution,67 and the 197368 Constitution. These rights are
now safely ensconced in section 4, Article III of the 1987
Constitution, viz:
"Sec. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and
petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of
assembly to democracy is now self-evident. The reasons are
well put by Emerson: first, freedom of expression is essential
as a means of assuring individual fulfillment; second, it is an
essential process for advancing knowledge and discovering
truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between
healthy cleavage and necessary consensus."69 In this sense,
freedom of speech and of assembly provides a framework
in which the "conflict necessary to the progress of a
society can take place without destroying the
society."70In Hague v. Committee for Industrial
Organization,71 this function of free speech and assembly was
echoed in the amicus curiae filed by the Bill of Rights
Committee of the American Bar Association which emphasized
that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and
this means talk for all and by all."72 In the relatively recent
case of Subayco v. Sandiganbayan,73 this Court similar
stressed that "… it should be clear even to those with
intellectual deficits that when the sovereign people assemble
to petition for redress of grievances, all should listen. For in a
democracy, it is the people who count; those who are deaf
to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political
questions. The principal issues for resolution require the
proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,74 and section 875 of
Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling
on the scope of presidential immunity from suit. They also
involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is
emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's
in vocation of the doctrine of political question is but a foray in
the dark.
II
Whether or not the petitioner
resigned as President
We now slide to the second issue. None of the parties
considered this issue as posing a political question. Indeed, it
involves a legal question whose factual ingredient is
determinable from the records of the case and by resort to
judicial notice. Petitioner denies he resigned as President or
that he suffers from a permanent disability. Hence, he submits
FINALS CONSTITUTION I ACJUCO 17
that the office of the President was not vacant when
respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section
8, Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability,
removal from office or resignation of the President,
the Vice President shall become the President to
serve the unexpired term. In case of death,
permanent disability, removal from office, or
resignation of both the President and Vice President,
the President of the Senate or, in case of his inability,
the Speaker of the House of Representatives, shall
then act as President until the President or Vice
President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President
or should be considered resigned as of January 20, 2001 when
respondent took her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be
an intent to resign and the intent must be coupled by acts
of relinquishment.78 The validity of a resignation is not
government by any formal requirement as to form. It can be
oral. It can be written. It can be express. It can be implied. As
long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write
any formal letter of resignation before he evacuated
Malacañang Palace in the afternoon of January 20, 2001 after
the oath-taking of respondent Arroyo. Consequently, whether
or not petitioner resigned has to be determined from his act
and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts
and circumstantial evidence bearing a material relevance
on the issue.
Using this totality test, we hold that petitioner resigned as
President.
To appreciate the public pressure that led to the resignation of
the petitioner, it is important to follow the succession of events
after the exposẻ of Governor Singson. The Senate Blue
Ribbon Committee investigated. The more detailed revelations
of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of
Impeachment filed in the House of Representatives which
initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies
began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker
Villar defected with 47 representatives in tow. Then, his
respected senior economic advisers resigned together with his
Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the
people's call for his resignation intensified. The call reached a
new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It
sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.
As events approached January 20, we can have an
authoritative window on the state of mind of the petitioner.
The window is provided in the "Final Days of Joseph Ejercito
Estrada," the diary of Executive Secretary Angara serialized in
the Philippine Daily Inquirer.79 The Angara Diary reveals that
in the morning of January 19, petitioner's loyal advisers were
worried about the swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle it. Their worry
would worsen. At 1:20 p.m., petitioner pulled Secretary Angara
into his small office at the presidential residence and
exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)" 80 An hour later or
at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a
candidate. The proposal for a snap election for president
in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency
even at that time. At 3:00 p.m., General Reyes joined the sea
of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFP's withdrawal of
support from the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support left petitioner
weak as a president. According to Secretary Angara, he asked
Senator Pimentel to advise petitioner to consider the option
of "dignified exit or resignation."81 Petitioner did not
disagree but listened intently. 82 The sky was falling fast on
the petitioner. At 9:30 p.m., Senator Pimentel repeated to the
petitioner the urgency of making a graceful and dignified exit.
He gave the proposal a sweetener by saying that petitioner
would be allowed to go abroad with enough funds to support
him and his family.83 Significantly, the petitioner expressed
no objection to the suggestion for a graceful and dignified
exit but said he would never leave the country.84 At 10:00
p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in
the palace."85 This is proof that petitioner had reconciled
himself to the reality that he had to resign. His mind was
already concerned with the five-day grace period he could
stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former
President Ramos called up Secretary Angara and requested,
"Ed, magtulungan tayo para magkaroon tayo ng (let's
cooperate to ensure a) peaceful and orderly transfer of
power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer
of power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of
power immediately started at 12:20 a.m. of January 20, that
fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioner's
resignation; (2) the guarantee of the safety of the petitioner and
his family, and (3) the agreement to open the second envelope
to vindicate the name of the petitioner. 87 Again, we note that
the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to
Secretary Angara, at 2:30 a.m., he briefed the petitioner on the
three points and the following entry in the Angara Diary
shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of
negotiations. The President immediately stresses
that he just wants the five-day period promised by
Reyes, as well as to open the second envelope to
clear his name.
If the envelope is opened, on Monday, he says,
he will leave by Monday.
FINALS CONSTITUTION I ACJUCO 18
The President says. "Pagod na pagod na ako.
Ayoko na masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired.
I don't want any more of this – it's too painful. I'm
tired of the red tape, the bureaucracy, the
intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has
resigned. The intent to resign is clear when he said "x x
x Ayoko na masyado nang masakit." "Ayoko na" are words
of resignation.
The second round of negotiation resumed at 7:30 a.m.
According to the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms.
Macapagal's spokesperson) Rene Corona. For this
round, I am accompanied by Dondon Bagatsing and
Macel.
Rene pulls out a document titled "Negotiating
Points." It reads:
'1. The President shall sign a resignation document
within the day, 20 January 2001, that will be effective
on Wednesday, 24 January 2001, on which day the
Vice President will assume the Presidency of the
Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition
process for the assumption of the new administration
shall commence, and persons designated by the
Vice President to various positions and offices of the
government shall start their orientation activities in
coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the
Philippine National Police shall function under the
Vice President as national military and police
authority effective immediately.
4. The Armed Forced of the Philippines, through its
Chief of Staff, shall guarantee the security of the
President and his family as approved by the national
military and police authority (Vice President).
5. It is to be noted that the Senate will open the
second envelope in connection with the alleged
savings account of the President in the Equitable PCI
Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their
respective principals, agree and undertake as
follows:
'1. A transition will occur and take place on
Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the
presidency to Vice President Gloria Macapagal-
Arroyo.
'2. In return, President Estrada and his families are
guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise,
President Estrada and his families are guarantee
freedom from persecution or retaliation from
government and the private sector throughout their
natural lifetimes.
This commitment shall be guaranteed by the Armed
Forces of the Philippines (AFP) through the Chief of
Staff, as approved by the national military and police
authorities – Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the
Senate sitting as an impeachment court will authorize
the opening of the second envelope in the
impeachment trial as proof that the subject savings
account does not belong to President Estrada.
'4. During the five-day transition period between 20
January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall
receive an appropriate briefing from the outgoing
Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the
Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police
authorities.
Both parties hereto agree that the AFP chief of staff
and PNP director general shall obtain all the
necessary signatures as affixed to this agreement
and insure faithful implementation and observance
thereof.
Vice President Gloria Macapagal-Arroyo shall issue
a public statement in the form and tenor provided for
in "Annex A" heretofore attached to this
agreement."89
The second round of negotiation cements the reading that the
petitioner has resigned. It will be noted that during this second
round of negotiation, the resignation of the petitioner was again
treated as a given fact. The only unsettled points at that time
were the measures to be undertaken by the parties during and
after the transition period.
According to Secretary Angara, the draft agreement, which
was premised on the resignation of the petitioner was further
refined. It was then, signed by their side and he was ready to
fax it to General Reyes and Senator Pimentel to await the
signature of the United Opposition. However, the signing by
the party of the respondent Arroyo was aborted by her oath-
taking. The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself,
there is a firm agreement on the five points to effect
a peaceful transition. I can hear the general clearing
all these points with a group he is with. I hear voices
in the background.
Agreement.
FINALS CONSTITUTION I ACJUCO 19
The agreement starts: 1. The President shall resign
today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice
President will assume the presidency of the Republic
of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the
new administration shall commence on 20 January
2001, wherein persons designated by the Vice
President to various government positions shall start
orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its
Chief of Staff, shall guarantee the safety and security
of the President and his families throughout their
natural lifetimes as approved by the national military
and police authority – Vice President.
'4. The AFP and the Philippine National Police (PNP)
shall function under the Vice President as national
military and police authorities.
'5. Both parties request the impeachment court to
open the second envelope in the impeachment trial,
the contents of which shall be offered as proof that
the subject savings account does not belong to the
President.
The Vice President shall issue a public statement in
the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and
Nene Pimentel our agreement, signed by our side
and awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say
that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in
at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang
agreement (why couldn't you wait? What about the
agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and
academic na?'
And General Reyes answers: ' Oo nga, I delete na
natin, sir (yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and
say that there was a double cross.
But I immediately instruct Macel to delete the first
provision on resignation since this matter is already
moot and academic. Within moments, Macel erases
the first provision and faxes the documents, which
have been signed by myself, Dondon and Macel, to
Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document
to General Reyes for the signatures of the other side,
as it is important that the provisions on security, at
least, should be respected.
I then advise the President that the Supreme Court
has ruled that Chief Justice Davide will administer the
oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the
Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to some
people inside the compound.
The president is having his final meal at the
presidential Residence with the few friends and
Cabinet members who have gathered.
By this time, demonstrators have already broken
down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police
and military have already withdrawn their support for
the President.
1 p.m. – The President's personal staff is rushing to
pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the
president needs to release a final statement before
leaving Malacañang.
The statement reads: At twelve o'clock noon today,
Vice President Gloria Macapagal-Arroyo took her
oath as President of the Republic of the Philippines.
While along with many other legal minds of our
country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing
process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any
future challenges that may come ahead in the same
service of our country.
I call on all my supporters and followers to join me in
the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our beloved
people.
MABUHAY!"'
It was curtain time for the petitioner.
FINALS CONSTITUTION I ACJUCO 20
In sum, we hold that the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacañang. In the
press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President
of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving
the Palace due to any kind inability and that he was going to
re-assume the presidency as soon as the disability disappears:
(3) he expressed his gratitude to the people for the opportunity
to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that
may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after occupying
the office of the president which he has given up; and (5) he
called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity.
Certainly, the national spirit of reconciliation and solidarity
could not be attained if he did not give up the presidency. The
press release was petitioner's valedictory, his final act of
farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only
took a temporary leave dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of
the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers
and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting
president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The
pleadings filed by the petitioner in the cases at bar did not
discuss, may even intimate, the circumstances that led to its
preparation. Neither did the counsel of the petitioner reveal to
the Court these circumstances during the oral argument. It
strikes the Court as strange that the letter, despite its legal
value, was never referred to by the petitioner during the week-
long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too
easy for him to tell the Filipino people in his press release that
he was temporarily unable to govern and that he was leaving
the reins of government to respondent Arroyo for the time
bearing. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly as a
later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a
changing caprice nor of a whimsical will especially if the
resignation is the result of his reputation by the people. There
is another reason why this Court cannot given any legal
significance to petitioner's letter and this shall be discussed in
issue number III of this Decision.
After petitioner contended that as a matter of fact he did not
resign, he also argues that he could not resign as a matter of
law. He relies on section 12 of RA No. 3019, otherwise known
as the Anti-graft and Corrupt Practices Act, which allegedly
prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign
or retire pending an investigation, criminals or
administrative, or pending a prosecution against him,
for any offense under this Act or under the provisions
of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly
provide any comfort to the petitioner. RA No. 3019 originated
form Senate Bill No. 293. The original draft of the bill, when it
was submitted to the Senate, did not contain a provision similar
to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of
the bill, "reserved to propose during the period of amendments
the inclusion of a provision to the effect that no public official
who is under prosecution for any act of graft or corruption, or
is under administrative investigation, shall be allowed to
voluntarily resign or retire."92 During the period of
amendments, the following provision was inserted as section
15:
"Sec. 15. Termination of office – No public official
shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a
prosecution against him, for any offense under the
Act or under the provisions of the Revised Penal
Code on bribery.
The separation or cessation of a public official form
office shall not be a bar to his prosecution under this
Act for an offense committed during his
incumbency."93
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the
provision and insisted that the President's immunity should
extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill
No. 293, was thereafter passed. Section 15 above became
section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the
President, which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition
against the resignation or retirement of a public official with
pending criminal and administrative cases against him. Be that
as it may, the intent of the law ought to be obvious. It is to
prevent the act of resignation or retirement from being used by
a public official as a protective shield to stop the investigation
of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal Code. To be
sure, no person can be compelled to render service for that
would be a violation of his constitutional right. 94 A public official
has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official
is facing administrative or criminal investigation or prosecution,
such resignation or retirement will not cause the dismissal of
the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be
rejected. In the cases at bar, the records show that when
petitioner resigned on January 20, 2001, the cases filed
against him before the Ombudsman were OMB Case Nos. 0-
00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758.
While these cases have been filed, the respondent
Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of
FINALS CONSTITUTION I ACJUCO 21
RA No. 3019 cannot therefore be invoked by the petitioner for
it contemplates of cases whose investigation or prosecution do
not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019,
bars him from resigning. We hold otherwise. The exact nature
of an impeachment proceeding is debatable. But even
assuming arguendo that it is an administrative proceeding, it
can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of
the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the
public prosecutors filed their Manifestation of Withdrawal of
Appearance, and the proceedings were postponed indefinitely.
There was, in effect, no impeachment case pending against
petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to
Act as President.
We shall now tackle the contention of the petitioner that he is
merely temporarily unable to perform the powers and duties of
the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20,
2001 letter of petitioner sent on the same day to Senate
President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President
has no power to adjudge the inability of the petitioner to
discharge the powers and duties of the presidency. His
significant submittal is that "Congress has the ultimate
authority under the Constitution to determine whether the
President is incapable of performing his functions in the
manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is
a President on leave and respondent Arroyo is only an Acting
President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the
President of the Senate and the Speaker of the
House of Representatives his written declaration that
he is unable to discharge the powers and duties of
his office, and until he transmits to them a written
declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting
President.
Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate and
to the Speaker of the House of Representatives their
written declaration that the President is unable to
discharge the powers and duties of his office, the
Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the
President of the Senate and to the Speaker of the
House of Representatives his written declaration that
no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of
all the Members of the Cabinet transmit within five
days to the President of the Senate and to the
Speaker of the House of Representatives their
written declaration that the President is unable to
discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose,
the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules
and without need of call.
If the Congress, within ten days after receipt of the
last written declaration, or, if not in session, within
twelve days after it is required to assemble,
determines by a two-thirds vote of both Houses,
voting separately, that the President is unable to
discharge the powers and duties of his office, the
Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and
duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the
above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo
took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of
Representatives passed on January 24,
2001 House Resolution No. 175;96
On the same date, the House of the Representatives
passed House Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF
THE HOUSE OF REPRESENTATIVES TO THE
ASSUMPTION INTO OFFICE BY VICE PRESIDENT
GLORIA MACAPAGAL-ARROYO AS PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS AND
EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE NATION'S GOALS UNDER
THE CONSTITUTION
WHEREAS, as a consequence of the people's loss
of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the
Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had
withdrawn support from him;
WHEREAS, upon authority of an en banc resolution
of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the
Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the
international community had extended their
recognition to Her Excellency, Gloria Macapagal-
Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose
of national unity and development;
WHEREAS, it is axiomatic that the obligations of the
government cannot be achieved if it is divided, thus
by reason of the constitutional duty of the House of
Representatives as an institution and that of the
FINALS CONSTITUTION I ACJUCO 22
individual members thereof of fealty to the supreme
will of the people, the House of Representatives must
ensure to the people a stable, continuing government
and therefore must remove all obstacles to the
attainment thereof;
WHEREAS, it is a concomitant duty of the House of
Representatives to exert all efforts to unify the nation,
to eliminate fractious tension, to heal social and
political wounds, and to be an instrument of national
reconciliation and solidarity as it is a direct
representative of the various segments of the whole
nation;
WHEREAS, without surrending its independence, it
is vital for the attainment of all the foregoing, for the
House of Representatives to extend its support and
collaboration to the administration of Her Excellency,
President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national
interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To
express its support to the assumption into office by
Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, to
extend its congratulations and to express its support
for her administration as a partner in the attainment
of the Nation's goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives
passed House Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT
GLORIA MACAPAGAL-ARROYO'S NOMINATION
OF SENATOR TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
WHEREAS, there is a vacancy in the Office of the
Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the
Constitution, the President in the event of such
vacancy shall nominate a Vice President from among
the members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a
public servant endowed with integrity, competence
and courage; who has served the Filipino people with
dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr.
possesses sterling qualities of true statesmanship,
having served the government in various capacities,
among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of
the Philippines – qualities which merit his nomination
to the position of Vice President of the Republic:
Now, therefore, be it
Resolved as it is hereby resolved by the House of
Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T.
Guingona, Jr. as the Vice President of the Republic
of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming
inability, some twelve (12) members of the Senate
signed the following:
"RESOLUTION
WHEREAS, the recent transition in government
offers the nation an opportunity for meaningful
change and challenge;
WHEREAS, to attain desired changes and overcome
awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been
the forum for vital legislative measures in unity
despite diversities in perspectives;
WHEREFORE, we recognize and express support to
the new government of President Gloria Macapagal-
Arroyo and resolve to discharge and overcome the
nation's challenges." 99
On February 7, the Senate also passed Senate
Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT
GLORIA MACAPAGAL ARROYO'S NOMINATION
OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE
PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice
President due to the assumption to the Presidency of
Vice President Gloria Macapagal-Arroyo;
FINALS CONSTITUTION I ACJUCO 23
WHEREAS, pursuant to Section 9 Article VII of the
Constitution, the President in the event of such
vacancy shall nominate a Vice President from among
the members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public
servant endowed with integrity, competence and
courage; who has served the Filipino people with
dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr.
possesses sterling qualities of true statemanship,
having served the government in various capacities,
among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of
the land - which qualities merit his nomination to the
position of Vice President of the Republic: Now,
therefore, be it
Resolved, as it is hereby resolved, That the Senate
confirm the nomination of Sen. Teofisto T. Guingona,
Jr. as Vice President of the Republic of the
Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise
passed Senate Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE
IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate
recognize that the Impeachment Court is functus
officioand has been terminated.
Resolved, further, That the Journals of the
Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17,
2001 be considered approved.
Resolved, further, That the records of the
Impeachment Court including the "second envelope"
be transferred to the Archives of the Senate for
proper safekeeping and preservation in accordance
with the Rules of the Senate. Disposition and
retrieval thereof shall be made only upon written
approval of the Senate president.
Resolved, finally. That all parties concerned be
furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No.
84 "certifying to the existence of vacancy in the Senate and
calling on the COMELEC to fill up such vacancy through
election to be held simultaneously with the regular election on
May 14, 2001 and the Senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for
the unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be
signed into law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet, without any recognition from any sector of
government, and without any support from the Armed Forces
of the Philippines and the Philippine National Police, the
petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that
both houses of Congress have recognized respondent
Arroyo as the President. Implicitly clear in that recognition
is the premise that the inability of petitioner Estrada. Is no
longer temporary. Congress has clearly rejected
petitioner's claim of inability.
The question is whether this Court has jurisdiction to
review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as president of
the Philippines. Following Tañada v. Cuenco,102 we hold that
this Court cannot exercise its judicial power or this is an issue
"in regard to which full discretionary authority has been
delegated to the Legislative xxx branch of the government." Or
to use the language in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable and
manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to discharge the
power and duties of the presidency. The question is political
in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of
separation of powers.
In fine, even if the petitioner can prove that he did not
resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely unable
to govern temporarily. That claim has been laid to rest by
Congress and the decision that respondent Arroyo is the
de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
FINALS CONSTITUTION I ACJUCO 24
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases
filed against him before the respondent Ombudsman should
be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or
civil.
Before resolving petitioner's contentions, a revisit of our legal
history executive immunity will be most enlightening. The
doctrine of executive immunity in this jurisdiction emerged as
a case law. In the 1910 case of Forbes, etc. vs. Chuoco
Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-
General of the Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of
the City of Manila, respectively, for damages for allegedly
conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated,
does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may,
under cover of his office, do what he will, unimpeded
and unrestrained. Such a construction would mean
that tyranny, under the guise of the execution of the
law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference
of courts or legislatures. This does not mean, either
that a person injured by the executive authority by an
act unjustifiable under the law has n remedy, but
must submit in silence. On the contrary, it means,
simply, that the governors-general, like the judges if
the courts and the members of the Legislature, may
not be personally mulcted in civil damages for the
consequences of an act executed in the performance
of his official duties. The judiciary has full power to,
and will, when the mater is properly presented to it
and the occasion justly warrants it, declare an act of
the Governor-General illegal and void and place as
nearly as possible in status quo any person who has
been deprived his liberty or his property by such act.
This remedy is assured to every person, however
humble or of whatever country, when his personal or
property rights have been invaded, even by the
highest authority of the state. The thing which the
judiciary can not do is mulct the Governor-General
personally in damages which result from the
performance of his official duty, any more than it can
a member of the Philippine Commission of the
Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that
the chief executive may not be personally sued at all
in relation to acts which he claims to perform as such
official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion
which touched the liability of judges and drew an
analogy between such liability and that of the
Governor-General, that the latter is liable when he
acts in a case so plainly outside of his power and
authority that he can not be said to have exercised
discretion in determining whether or not he had the
right to act. What is held here is that he will be
protected from personal liability for damages not only
when he acts within his authority, but also when he is
without authority, provided he actually used
discretion and judgement, that is, the judicial faculty,
in determining whether he had authority to act or not.
In other words, in determining the question of his
authority. If he decide wrongly, he is still protected
provided the question of his authority was one over
which two men, reasonably qualified for that position,
might honestly differ; but he s not protected if the lack
of authority to act is so plain that two such men could
not honestly differ over its determination. In such
case, be acts, not as Governor-General but as a
private individual, and as such must answer for the
consequences of his act."
Mr. Justice Johnson underscored the consequences if the
Chief Executive was not granted immunity from suit, viz"xxx.
Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation;
disrespect engendered for the person of one of the highest
officials of the state and for the office he occupies; a tendency
to unrest and disorder resulting in a way, in distrust as to the
integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any
specific provision on executive immunity. Then came the
tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In
1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his
tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his
specific orders during his tenure.
The immunities herein provided shall apply to the
incumbent President referred to in Article XVII of this
Constitution.
In his second Vicente G. Sinco professional Chair lecture
entitled, "Presidential Immunity and All The King's Men: The
Law of Privilege As a Defense To Actions For
Damages,"106 petitioner's learned counsel, former Dean of the
UP College of Law, Atty. Pacificao Agabin, brightened the
modifications effected by this constitutional amendment on the
existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the
Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to
shield the President not only form civil claims but also
from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of
the President outside the scope of official duties. And
third, we broadened its coverage so as to include not
only the President but also other persons, be they
government officials or private individuals, who acted
upon orders of the President. It can be said that at
that point most of us were suffering from AIDS (or
absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the
repeal of this Marcosian concept of executive immunity in the
1973 Constitution. The move was led by them Member of
Parliament, now Secretary of Finance, Alberto Romulo, who
argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a
public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos
was ousted from office by the People Power revolution in 1986.
When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973
FINALS CONSTITUTION I ACJUCO 25
Constitution. The following explanation was given by delegate
J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the
Committee's omitting in the draft proposal the
immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did very
well in striking out second sentence, at the very least,
of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee
members not agree to a restoration of at least the first
sentence that the President shall be immune from
suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be
spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's
almost daily?
Fr. Bernas. The reason for the omission is that we
consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before.
The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for
any more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light
of this history. We reject his argument that he cannot be
prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner
Estrada was aborted by the walkout of the prosecutors and by
the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No.
83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should
first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar
against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a
non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a
criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases
may already be filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment
proceeding has been filed against the President, for
example, and the President resigns before
judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect
the impeachment proceeding? Will it be necessarily
dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office, then his
resignation would render the case moot and
academic. However, as the provision says, the
criminal and civil aspects of it may continue in the
ordinary courts."
This is in accord with our ruling In Re: Saturnino
Bermudez111 that 'incumbent Presidents are immune from suit
or from being brought to court during the period of their
incumbency and tenure" but not beyond. Considering the
peculiar circumstance that the impeachment process against
the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition
sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment
proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for they
have a different factual milieu.
We now come to the scope of immunity that can be claimed by
petitioner as a non-sitting President. The cases filed against
petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the
imagination can these crimes, especially plunder which carries
the death penalty, be covered by the alleged mantle of
immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal
acts and wrapping him with post-tenure immunity from liability.
It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and conditions. The rule is that
unlawful acts of public officials are not acts of the State and the
officer who acts illegally is not acting as such but stands in the
same footing as any trespasser.114
Indeed, critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v.
Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents
relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges
of conspiracy to obstruct Justice and other offenses, which
were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972
presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was
not subject to judicial process and that he should first be
impeached and removed from office before he could be made
amenable to judicial proceedings. The claim was rejected by
the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use
in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands
of due process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US
Supreme Court further held that the immunity of the president
from civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine in
the case of Clinton v. Jones117 where it held that the US
President's immunity from suits for money damages arising out
of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to
stretch the scope of executive immunity in our jurisdiction. One
of the great themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state policy that "the
State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with
FINALS CONSTITUTION I ACJUCO 26
patriotism and justice, and lead modest lives." 120 It set the rule
that 'the right of the State to recover properties unlawfully
acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of
the Ombudsman and endowed it with enormous powers,
among which is to "investigate on its own, or on complaint by
any person, any act or omission of any public official,
employee, office or agency, when such act or omission
appears to be illegal, unjust improper or inefficient." 123 The
Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if
we sustain petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his
incumbency.
V At best, appellant can only conjure possibility of
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman
should be stopped from conducting the investigation of the
cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the criminal
cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of
thought on how to deal with the rain of unrestrained publicity
during the investigation and trial of high profile cases. 125 The
British approach the problem with the presumption that
publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial
suffers a threat.126 The American approach is different. US
courts assume a skeptical approach about the potential effect
of pervasive publicity on the right of an accused to a fair trial.
They have developed different strains of tests to resolve this
issue, i.e., substantial; probability of irreparable harm, strong
likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been
raised in this Court to stop the trials or annul convictions in high
profile criminal cases.127 In People vs. Teehankee, Jr.,128 later
reiterated in the case of Larranaga vs. court of Appeals, et
al.,129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was
denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media
gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and
now, we rule that the right of an accused to a fair trial
is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a
fair trial for, as well pointed out, a responsible press
has always been regarded as the criminal field xxx.
The press does not simply publish information about
trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the
right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-
gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to
seal the minds of members of the bench from pre-
trial and other off-court publicity of sensational
criminal cases. The state of the art of our
communication system brings news as they happen
straight to our breakfast tables and right to our
bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our
idea of a fair and impartial judge is not that of a hermit
who is out of touch with the world. We have not
installed the jury system whose members are overly
protected from publicity lest they lose there
impartially. xxx xxx xxx. Our judges are learned in the
law and trained to disregard off-court evidence and
on-camera performances of parties to litigation. Their
mere exposure to publications and publicity stunts
does not per se fatally infect their impartiality.
prejudice on the part of the trial judge due to the
barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et al.
v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of
prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not
show that the trial judge developed actual bias
against appellants as a consequence of the
extensive media coverage of the pre-trial and trial of
his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed
opinion as a result of prejudicial publicity, which is
incapable of change even by evidence presented
during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case
of Webb vs. Hon. Raul de Leon, etc.130 and its companion
cases, viz:
"Again petitioners raise the effect of prejudicial
publicity on their right to due process while
undergoing preliminary investigation. We find no
procedural impediment to its early invocation
considering the substantial risk to their liberty while
undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes,
its excessiveness has been aggravated by kinetic
developments in the telecommunications industry.
For sure, few cases can match the high volume and
high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even
today. Commentators still bombard the public with
views not too many of which are sober and sublime.
Indeed, even the principal actors in the case – the
NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz.
The possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be
completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v.
Virginia, it was
xxx
FINALS CONSTITUTION I ACJUCO 27
a. The historical evidence of the evolution of
the criminal trial in Anglo-American justice
demonstrates conclusively that at the time
this Nation's organic laws were adopted,
criminal trials both here and in England had
long been presumptively open, thus giving
assurance that the proceedings were
conducted fairly to all concerned and
discouraging perjury, the misconduct of
participants, or decisions based on secret
bias or partiality. In addition, the significant
community therapeutic value of public trials
was recognized when a shocking crime
occurs a community reaction of outrage
and public protest often follows, and
thereafter the open processes of justice
serve an important prophylactic purpose,
providing an outlet for community concern,
hostility and emotion. To work effectively, it
is important that society's criminal process
satisfy the appearance of justice,' Offutt v.
United States, 348 US 11, 14, 99 L ED 11,
75 S Ct 11, which can best be provided by
allowing people to observe such process.
From this unbroken, uncontradicted
history, supported by reasons as valid
today as in centuries past, it must be
concluded that a presumption of openness
inheres in the very nature of a criminal trial
under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610,
4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and
assembly, expressly guaranteed by the
First Amendment, share a common core
purpose of assuring freedom of
communication on matters relating to the
functioning of government. In guaranteeing
freedom such as those of speech and
press, the First Amendment can be read as
protecting the right of everyone to attend
trials so as give meaning to those explicit
guarantees; the First Amendment right to
receive information and ideas means, in
the context of trials, that the guarantees of
speech and press, standing alone, prohibit
government from summarily closing
courtroom doors which had long been open
to the public at the time the First
Amendment was adopted. Moreover, the
right of assembly is also relevant, having
been regarded not only as an independent
right but also as a catalyst to augment the
free exercise of the other First Amendment
rights with which the draftsmen deliberately
linked it. A trial courtroom is a public place
where the people generally and
representatives of the media have a right to
be present, and where their presence
historically has been thought to enhance
the integrity and quality of what takes place.
c. Even though the Constitution contains no
provision which be its terms guarantees to
the public the right to attend criminal trials,
various fundamental rights, not expressly
guaranteed, have been recognized as
indispensable to the enjoyment of
enumerated rights. The right to attend
criminal trial is implicit in the guarantees of
the First Amendment: without the freedom
to attend such trials, which people have
exercised for centuries, important aspects
of freedom of speech and of the press be
eviscerated.
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. vs. Alejandro, et al., we
held that to warrant a finding of prejudicial publicity
there must be allegation and proof that the judges
have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that
the tone and content of the publicity that attended the
investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects
of publicity on the sense of fairness of the DOJ Panel,
for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of
an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page Resolution carries
no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence
except evidence properly adduced by the parties.
The length of time the investigation was conducted
despite its summary nature and the generosity with
which they accommodated the discovery motions of
petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on
the ground of bias resulting from their bombardment
of prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough
evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof. 131 He needs to
show more weighty social science evidence to successfully
prove the impaired capacity of a judge to render a bias-free
decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of
prosecutors in the office of the respondent Ombudsman. No
allegation whatsoever has been made by the petitioner that the
minds of the members of this special panel have already been
infected by bias because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to come out with
its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged
respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has
been influenced by the barrage of slanted news reports, and
he has buckled to the threats and pressures directed at him by
the mobs."132 News reports have also been quoted to establish
that the respondent Ombudsman has already prejudged the
cases of the petitioner133 and it is postulated that the
prosecutors investigating the petitioner will be influenced by
this bias of their superior.
Again, we hold that the evidence proffered by the petitioner
is insubstantial. The accuracy of the news reports referred to
by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent
Ombudsman as to his alleged prejudice and the presumption
of good faith and regularity in the performance of official duty
to which he is entitled. Nor can we adopt the theory of
derivative prejudice of petitioner, i.e., that the prejudice of
respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by
FINALS CONSTITUTION I ACJUCO 28

their superiors.134 They can be reversed but they can not be

compelled cases which they believe deserve dismissal. In
other words, investigating prosecutors should not be treated
like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner
and the latter believes that the findings of probable cause
against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against

the petitioner will now acquire a different dimension and then
move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit
a higher decibel while the gnashing of teeth of the minority will
be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the
guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all
freedoms."135To be sure, the duty of a prosecutor is more to do
justice and less to prosecute. His is the obligation to insure that
the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against
what Lord Bryce calls "the impatient vehemence of the
majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are
rights necessarily resolved by the power of number for in a
democracy, the dogmatism of the majority is not and should
never be the definition of the rule of law. If democracy has
proved to be the best form of government, it is because it has
respected the right of the minority to convince the majority that
it is wrong. Tolerance of multiformity of thoughts, however
offensive they may be, is the key to man's progress from the
cave to civilization. Let us not throw away that key just to
pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada

challenging the respondent Gloria Macapagal-Arroyo as the de
jure 14th President of the Republic are DISMISSED.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 29
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and
CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform;
CARLOS DOMINGUEZ, as Secretary of Agriculture;
LOURDES QUISUMBING, as Secretary of Education,
Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources;
VICENTE V. JAYME, as Secretary of Finance; SEDFREY
ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON,
as Secretary of Labor and Employment; LUIS SANTOS, as
Secretary of Local Government; FIDEL V. RAMOS, as
Secretary of National Defense; TEODORO F. BENIGNO, as
Press Secretary; JUANITO FERRER, as Secretary of
Public Works and Highways; ANTONIO ARRIZABAL, as
Secretary of Science and Technology; JOSE
CONCEPCION, as Secretary of Trade and Industry; JOSE
ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO
R.A. BENGZON, as Secretary of Health; REINERIO D.
REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as
Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and
Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated
August 9, 19881 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No.
284 issued by President Corazon C. Aquino on July 25, 1987.
The pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary
functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other
appointive officials of the Executive Department may,
in addition to his primary position, hold not more than
two positions in the government and government
corporations and receive the corresponding
compensation therefor; Provided, that this limitation
shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is
the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official of the
Executive Department holds more positions than
what is allowed in Section 1 hereof, they (sic) must
relinquish the excess position in favor of the
subordinate official who is next in rank, but in no case
shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the
government in government-owned or controlled
corporations, at least one-third (1/3) of the members
of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect,
allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject to
the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment
during their tenure. They shall not, during said
tenure, directly or indirectly practice any other
profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of
their office.
It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any
other office or employment during their tenure. In addition to
seeking a declaration of the unconstitutionality of Executive
Order No. 284, petitioner Anti-Graft League of the Philippines
further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents
therein to cease and desist from holding, in addition to their
primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges
and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund
any and all amounts or benefits that they may have received
from such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoñez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B,
rendered on July 23, 1987 Opinion No. 73, series of
1987,5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of
government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is
made an ex-officio member of the Judicial and Bar Council
under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective
positions; and that on the basis of this Opinion, the President
of the Philippines, on July 25, 1987 or two (2) days before
Congress convened on July 27, 1987: promulgated Executive
Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both
DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article
I-XB. This "strained linkage" between the two provisions, each
FINALS CONSTITUTION I ACJUCO 30
addressed to a distinct and separate group of public officers –
– one, the President and her official family, and the other,
public servants in general –– allegedly "abolished the clearly
separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the
President, the Vice-President, the members of the Cabinet,
and their deputies and subalterns, who are the leaders of
government expected to lead by example."7 Article IX-B,
Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall
hold any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ
Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 19879 and DOJ
Opinion No. 155, series of 1988,10 being the first official
construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of
the Constitution, involving the same subject of appointments or
designations of an appointive executive official to positions
other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987
is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155,
series of 1988 construed the limitation imposed by E.O. No.
284 as not applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the
primary functions of the public official, but only to the holding
of multiple positions which are not related to or necessarily
included in the position of the public official concerned
(disparate positions).
In sum, the constitutionality of Executive Order No. 284 is
being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than
those provided in the Constitution. According to petitioners, by
virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other
office or employment in Government are those provided in the
Constitution, namely: (1) The Vice-President may be appointed
as a Member of the Cabinet under Section 3, par. (2), Article
VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in
Section 7, par. (2), Article I-XB on the Civil Service
Commission applies to officers and employees of the Civil
Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President,
Vice-President, the members of the Cabinet and their deputies
or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement
between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that
because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception
must be expressly provided in the Constitution, as in the case
of the Vice-President being allowed to become a Member of
the Cabinet under the second paragraph of Section 3, Article
VII or the Secretary of Justice being designated an ex-
officio member of the Judicial and Bar Council under Article
VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the
Constitution" in Section 13, Article VII makes reference to
Section 7, par. (2), Article I-XB insofar as the appointive
officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in
Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned
admit of the broad exceptions made for appointive officials in
general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by
law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporation
or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution
should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of
the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and
calculated to effect that purpose.11
The practice of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies
or boards of various government agencies and
instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative
powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority.
There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their
deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of
self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled "1983
Summary Annual Audit Report on: Government-Owned and
Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of
Membership in Governing Boards of Government-Owned and
Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of
propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the
governing boards of twenty-nine (29) governmental agencies,
FINALS CONSTITUTION I ACJUCO 31
instrumentalities and corporations; Imelda R. Marcos of
twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo
R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z.
Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen
(13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each;
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas
of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of
ten (10) each.13
The blatant betrayal of public trust evolved into one of the
serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under
consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental
offices and employment. In fact, as keenly observed by Mr.
Justice Isagani A. Cruz during the deliberations in these cases,
one of the strongest selling points of the 1987 Constitution
during the campaign for its ratification was the assurance given
by its proponents that the scandalous practice of Cabinet
members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom
would be discontinued.
But what is indeed significant is the fact that although Section
7, Article I-XB already contains a blanket prohibition against
the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the
Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different
phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as
holding other offices or employment in the government or
elsewhere is concerned.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the Constitution
on the disqualifications of certain public officials or employees
from holding other offices or employment. Under Section 13,
Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in
the Government . . .". Under Section 5(4), Article XVI, "(N)o
member of the armed forces in the active service shall, at any
time, be appointed in any capacity to a civilian position in the
Government,including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2),
Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on disqualifications
to hold other office or employment, the prohibition pertains to
an office or employment in the government and government-
owned or controlled corporations or their subsidiaries. In
striking contrast is the wording of Section 13, Article VII which
states that "(T)he President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase
"in the Government." The prohibition imposed on the President
and his official family is therefore all-embracing and covers
both public and private office or employment.
Going further into Section 13, Article VII, the second sentence
provides: "They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which
prohibitions are not similarly imposed on other public officials
or employees such as the Members of Congress, members of
the civil service in general and members of the armed forces,
are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually
have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore,
more cheeks and restraints on them are called for because
there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet,
their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7,
Article I-XB is meant to lay down the general rule applicable to
all elective and appointive public officials and employees, while
Section 13, Article VII is meant to be the exception applicable
only to the President, the Vice- President, Members of the
Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section
7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and
purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their
tenure. Respondents' interpretation that Section 13 of Article
VII admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set by
the framers of the Constitution as to when the high-ranking
officials of the Executive Branch from the President to
Assistant Secretary, on the one hand, and the generality of civil
servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position
in the government during their tenure.
Moreover, respondents' reading of the provisions in question
would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who,
under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who
as an elective public official under Sec. 7, par. (1) of Article I-
XB is absolutely ineligible "for appointment or designation in
any capacity to any public office or position during his tenure."
FINALS CONSTITUTION I ACJUCO 32
Surely, to say that the phrase "unless otherwise provided in
this Constitution" found in Section 13, Article VII has reference
to Section 7, par. (1) of Article I-XB would render meaningless
the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet,15 and to act as
President without relinquishing the Vice-Presidency where the
President shall not nave been chosen or fails to qualify. 16 Such
absurd consequence can be avoided only by interpreting the
two provisions under consideration as one, i.e., Section 7, par.
(1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that
no one provision of the Constitution is to be separated from all
the others, to be considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purposes of
the instrument.17 Sections bearing on a particular subject
should be considered and interpreted together as to effectuate
the whole purpose of the Constitution18 and one section is not
to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable,
and must lean in favor of a construction which will render every
word operative, rather than one which may make the words
idle and nugatory.20
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or
employment in the government during their tenure, the
exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory
so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the
language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal
negation.21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only
to those particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-
officiomember of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and
as required22 by the primary functions of said officials' office.
The reason is that these posts do no comprise "any other
office" within the contemplation of the constitutional prohibition
but are properly an imposition of additional duties and functions
on said officials.23 To characterize these posts otherwise would
lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security
Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the
Executive Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit in
this Council, which would then have no reason to exist for lack
of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the
Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can
his Undersecretaries and Assistant Secretaries chair these
agencies.
The Secretaries of Finance and Budget cannot sit in the
Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank
Governor would then be assisted by lower ranking employees
in providing policy direction in the areas of money, banking and
credit.25
Indeed, the framers of our Constitution could not have intended
such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be
interpreted as demanding the impossible or the impracticable;
and unreasonable or absurd consequences, if possible, should
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not
to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and
as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of
office." It refers to an "authority derived from official character
merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a
consequence of office, and without any other appointment or
authority than that conferred by the office." 27 An ex-
officio member of a board is one who is a member by virtue of
his title to a certain office, and without further warrant or
appointment.28 To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-
officioChairman of the Board of the Philippine Ports
Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2 of
the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need only
be designated by the respective department heads. With the
exception of the representative from the private sector, they
sit ex-officio. In order to be designated they must already be
holding positions in the offices mentioned in the law. Thus, for
instance, one who does not hold a previous appointment in the
Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect
to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because
the representatives so designated merely perform duties in the
Board in addition to those already performed under their
original appointments."32
The term "primary" used to describe "functions" refers to the
order of importance and thus means chief or principal function.
The term is not restricted to the singular but may refer to the
plural.33 The additional duties must not only be closely related
to, but must be required by the official's primary functions.
Examples of designations to positions by virtue of one's
primary functions are the Secretaries of Finance and Budget
sitting as members of the Monetary Board, and the Secretary
of Transportation and Communications acting as Chairman of
the Maritime Industry Authority34 and the Civil Aeronautics
Board.
FINALS CONSTITUTION I ACJUCO 33
If the functions required to be performed are merely incidental,
remotely related, inconsistent, incompatible, or otherwise alien
to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office"
prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the
Philippine Amusement and Gaming Corporation. The same
rule applies to such positions which confer on the cabinet
official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in
government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to the President,
Vice-President, Cabinet Members, their deputies or assistants
which are not inconsistent with those already prescribed by
their offices or appointments by virtue of their special
knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It is
a practice justified by the demands of efficiency, policy
direction, continuity and coordination among the different
offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws
affecting national interest and general welfare and delivering
basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments,
bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions
being assigned to the President and his official family to sit in
the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law
and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and
resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional
duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform
the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The reason
is that these services are already paid for and covered by the
compensation attached to his principal office. It should be
obvious that if, say, the Secretary of Finance attends a meeting
of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of
a per them or an honorarium or an allowance, or some other
such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the
proposal of Commissioner Christian Monsod to add to Section
7, par. (2), Article IX-B, originally found as Section 3 of the
General Provisions, the exception "unless required by the
functions of his position,"36 express reference to certain high-
ranking appointive public officials like members of the Cabinet
were made.37 Responding to a query of Commissioner Blas
Ople, Commissioner Monsod pointed out that there are
instances when although not required by current law,
membership of certain high-ranking executive officials in other
offices and corporations is necessary by reason of said
officials' primary functions. The example given by
Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and
Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the
official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this exception is
by virtue of Section 7, par. (2) of Article I-XB. This colloquy
between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions. 39 At that time, the
article on the Civil Service Commission had been approved on
third reading on July 22, 1986,40 while the article on the
Executive Department, containing the more specific prohibition
in Section 13, had also been earlier approved on third reading
on August 26, 1986.41 It was only after the draft Constitution
had undergone reformatting and "styling" by the Committee on
Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless
otherwise allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general principles
which would serve as constitutional guidelines in the absence
of specific constitutional provisions on the matter. What was
primarily at issue and approved on that occasion was the
adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional
Commission intended to dilute the specific prohibition in said
Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then Section
3 of the proposed general Provisions, later placed as Section
7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the
President and his official family is by reason of the legal
principles governing additional functions and duties of public
officials rather than by virtue of Section 7, par. 2, Article IX-B
At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by
the primary functions may be considered as not constituting
"any other office."
While it is permissible in this jurisdiction to consult the debates
and proceedings of the constitutional convention in order to
arrive at the reason and purpose of the resulting Constitution,
resort thereto may be had only when other guides fail42 as said
proceedings are powerless to vary the terms of the Constitution
when the meaning is clear.1âwphi1Debates in the
constitutional convention "are of value as showing the views of
the individual members, and as indicating the reasons for their
votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force
of fundamental law. We think it safer to construe the
constitution from what appears upon its face." 43 The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.44
It being clear, as it was in fact one of its best selling points, that
the 1987 Constitution seeks to prohibit the President, Vice-
President, members of the Cabinet, their deputies or assistants
from holding during their tenure multiple offices or employment
in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts
held without additional compensation in an ex-officio capacity
FINALS CONSTITUTION I ACJUCO 34

as provided by law and as required by the primary functions of
their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override
the constitution's manifest intent and the people'
understanding thereof.
In the light of the construction given to Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions
that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government
corporations, Executive Order No. 284 actually allows them to
hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any
one for such services.47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore
be retained by them.
WHEREFORE, subject to the qualification above-stated, the
petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.

The Court is alerted by respondents to the impractical

consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue
of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say
that the feared impractical consequences are more apparent
than real. Being head of an executive department is no mean
job. It is more than a full-time job, requiring full attention,
specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and
expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental
offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness
and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and
taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm,

the court hereby orders respondents Secretary of Environment
and Natural Resources Fulgencio Factoran, Jr., Secretary of
Local Government45 Luis Santos, Secretary of National
Defense Fidel V. Ramos, Secretary of Health Alfredo R.A.
Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as
herein defined, in the government, including government-
owned or controlled corporations and their subsidiaries. With
respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying
the positions complained of.

During their tenure in the questioned positions, respondents

may be considered de facto officers and as such entitled to
emoluments for actual services rendered. 46 It has been held
that "in cases where there is no de jure,officer, a de
facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is
FINALS CONSTITUTION I ACJUCO 35

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., DOF Eleanor dela Cruz P25,200.00
(1991-1993)
SOLEDAD EMILIA CRUZ, JOEL LUSTRIA, HENRY PAREL,
HELENA HABULAN, PORFIRIO VILLENA, JOSEPH
FRANCIA, CARMELLA TORRES, JOB DAVID, CESAR DTI Federico Luchico, Jr. 36,450.00
MEJIA, MA. LOURDES V. DEDAL, ALICE TIONGSON, (1991-1992)
REYDELUZ CONFERIDO, PHILIPPE LIM, NERISSA
SANCHEZ, MARY LUZ ELAINE PURACAN, RODOLFO DOF Soledad Emilia Cruz 57,300.00
QUIMBO, TITO GENILO and OSCAR ABUNDO, as (1992-1995)
members of the Board of the National Housing Authority
from the period covering 1991-1996, petitioners, vs.
DOLE Joel Lustria 4,500.00
COMMISSION ON AUDIT, represented by its
(1992)
Commissioners, respondents.

DOLE Henry Parel 2,250.00

DECISION
(1992)
SANDOVAL-GUTIERREZ, J.:
DOF Helena Habulan 4,050.00
This petition for certiorari[1] assails the Decision No. 98- (1993-1994)
381 dated September 22, 1998, rendered by the Commission
on Audit (COA), denying petitioners appeal from the Notice of DOF Porfirio Villena 6,750.00
Disallowance No. 97-011-061 issued by the NHA Resident (1993)
Auditor on October 23, 1997. Such Notice disallowed
payment to petitioners of their representation allowances
and per diems for the period from August 19, 1991 to DTI Joseph Francia 73,500.00
August 31, 1996 in the total amount of P276,600.00. (1993-1995)

Petitioners, numbering 20, were members of the Board DOLE Carmela Torres 4,500.00
of Directors of the National Housing Authority (NHA) from 1991 (1993)
to 1996.
On September 19, 1997, the COA issued Memorandum DPWH Job David 6,750.00
No. 97-038[2] directing all unit heads/auditors/team leaders of (1993-1994)
the national government agencies and government-owned and
controlled corporations which have effected payment of any DPWH Cesar Mejia 3,150.00
form of additional compensation or remuneration to cabinet (1993)
secretaries, their deputies and assistants, or their
representatives, in violation of the rule on multiple positions, to
(a) immediately cause the disallowance of such additional DOF Ma. Lourdes V. Dedal 2,250.00
compensation or remuneration given to and received by the (1993)
concerned officials, and (b) effect the refund of the same from
the time of the finality of the Supreme Court En Banc Decision DTI Alice Tiongson 900.00
in the consolidated cases of Civil Liberties Union vs. (1994)
Exexcutive Secretary and Anti-Graft League of the Philippines,
Inc. et al. vs. Secretary of Agrarian Reform, et al., promulgated
on February 22, 1991.[3] The COA Memorandum further stated DOLE Reynaluz Conferido 11,250.00
that the said Supreme Court Decision, which became final and (1994-1995)
executory on August 19, 1991,[4] declared Executive Order No.
284 unconstitutional insofar as it allows Cabinet members, DOLE Philippe Lim 4,500.00
their deputies and assistants to hold other offices, in addition (1994-1995)
to their primary offices, and to receive compensation therefor.
Accordingly, on October 23, 1997, NHA Resident Auditor DOF Nerissa Sanchez 2,700.00
Salvador J. Vasquez issued Notice of Disallowance No. 97- (1995)
011-061[5] disallowing in audit the payment of
representation allowances and per diems of "Cabinet DOF Mary Luz Elaine Puracan 1,800.00
members who were the ex- officio members of the NHA (1995)
Board of Directors and/or their respective alternates who
actually received the payments." The total disallowed
amount of P276,600 paid as representation allowances and DOLE Rodolfo Quimbo 7,200.00
per diems to each of the petitioners named below, covering the (1995)
period from August 19, 1991 to August 31, 1996, is broken
down as follows: [6] DOLE Tito Genilo 14,400.00
(1995)
NATIONAL HOUSING AUTHORITY
SCHEDULE OF PAID REPRESENTATION/PER DPWH Oscar Abundo 7,200.00
DIEM OF THE BOARD OF DIRECTORS (1995-1996) _____________
For the period August 19, 1991 to August 31, 1996 P276,600.00
============
AGENCY MEMBERS OF BOARD OF AMOUNT
DISALLOWED Petitioners, through then Chairman Dionisio C. Dela
DIRECTORS Serna of the NHA Board of Directors, appealed from the Notice
FINALS CONSTITUTION I ACJUCO 36
of Disallowance to the Commission on Audit [7] based on the
following grounds:
1. The Decision of the Supreme Court in Civil
Liberties Union and Anti-Graft League of the
Philippines, Inc. was clarified in the Resolution
of the Court En Banc on August 1, 1991, in that
the constitutional ban against dual or multiple
positions applies only to the members of the
Cabinet, their deputies or assistants. It does
not cover other appointive officials with
equivalent rank or those lower than the position
of Assistant Secretary; and
2. The NHA Directors are not Secretaries,
Undersecretaries or Assistant Secretaries and
that they occupy positions lower than the
position of Assistant Secretary.
On September 22, 1998, the COA issued Decision No.
98-381[8] denying petitioners' appeal, thus:
After circumspect evaluation of the facts and issues raised
herein, this Commission finds the instant appeal devoid of
merit. It must be stressed at the outset that the Directors
concerned were not sitting in the NHA Board in their own right
but as representatives of cabinet members and who are
constitutionally prohibited from holding any other office or
employment and receive compensation therefor, during their
tenure (Section 13, Article VII, Constitution; Civil Liberties
Union vs. Executive Secretary, 194 SCRA 317).
It may be conceded that the directors concerned occupy
positions lower than Assistant Secretary which may exempt
them from the prohibition (under) the doctrine enunciated
in Civil Liberties Union vs. Executive Secretary,
supra. However, their positions are merely derivative; they
derive their authority as agents of the authority they are
representing; their power and authority is sourced from the
power and authority of the cabinet members they are sitting
for. Sans the cabinet members, they are non-entities, without
power and without personality to act in any manner with
respect to the official transactions of the NHA. The agent or
representative can only validly act and receive benefits for
such action if the principal authority he is representing can
legally do so for the agent can only do so much as his principal
can do. The agent can never be larger than the principal. If the
principal is absolutely barred from holding any position in and
absolutely prohibited from receiving any remuneration from the
NHA or any government agency, for that matter, so must the
agent be. Indeed, the water cannot rise above its source.[9]
Hence, this petition.
Presidential Decree No. 757 is the law "Creating the
National Housing Authority and dissolving the existing housing
agencies, defining its powers and functions, providing funds
therefor, and for other purposes." Section 7 thereof provides:
SEC. 7. Board of Directors. - The Authority shall be governed
by a Board of Directors, hereinafter referred to as the Board,
which shall be composed of the Secretary of Public Works,
Transportation and Communication, the Director-General
of the National Economic and Development Authority, the
Secretary of Finance, the Secretary of Labor, the Secretary
of Industry, the Executive Secretary and the General
Manager of the Authority. From among the members, the
President will appoint a chairman. The members of the Board
may have their respective alternates who shall be the
officials next in rank to them and whose acts shall be
considered the acts of their principals with the right to
receive their benefit: Provided, that in the absence of the
Chairman, the Board shall elect a temporary presiding officer.
x x x (Emphasis ours)
It bears stressing that under the above provisions, the
persons mandated by law to sit as members of the NHA Board
are the following: (1) the Secretary of Public Works,
Transportation and Communications, (2) the Director-
General of the National Economic and Development
Authority, (3) the Secretary of Finance, (4) the Secretary of
Labor, (5) the Secretary of Industry, (6) the Executive
Secretary, and (7) the General Manager of the NHA. While
petitioners are not among those officers, however, they are
alternates of the said officers, whose acts shall be considered
the acts of their principals.
On this point, Section 13, Art. VII of the 1987
Constitution, provides:
SEC. 13. The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during their tenure, directly or indirectly practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof,
including any government-owned or controlled
corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of
Ombudsman, or as Secretaries, Undersecretaries,
Chairmen, or heads of bureaus of offices, including
government-owned or controlled corporations and their
subsidiaries.
Interpreting the foregoing Constitutional provisions, this
Court, in Civil Liberties Union and Anti-Graft League of the
Philippines, Inc.,[10] held:
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law and
as required by the primary functions of said officials'
office. The reason is that these posts do not comprise any
other office within the contemplation of the constitutional
prohibition but are properly an imposition of additional
duties and functions on said officials. x x x
xxxxxxxxx
To reiterate, the prohibition under Section 13, Article VII is not
to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and
as required by the primary functions of the concerned officials
office. The term ex-officio means from office; by virtue of
office. It refers to an authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position. Ex-officio likewise denotes an act done in an official
character, or as a consequence of office, and without any other
appointment or authority than that conferred by the
office. An ex-officio member of a board is one who is a member
by virtue of his title to a certain office, and without further
warrant or appointment. To illustrate, by express provision of
FINALS CONSTITUTION I ACJUCO 37

law, the Secretary of Transportation and Communications is

the ex-officio Chairman of the Board of the Philippine Ports
Authority, and the Light Rail Transit Authority.

xxxxxxxxx

The ex-officio position being actually and in legal

contemplation part of the principal office, it follows that
the official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an ex-
officio member thereof, he is actually and in legal
contemplation performing the primary function of
his principal office in defining policy in monetary banking
matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be
in the form of a per diem or an honorarium or an
allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is
prohibited by the Constitution.

xxxxxxxxx

(Emphasis ours)

Since the Executive Department Secretaries, as ex-

oficio members of the NHA Board, are prohibited from
receiving extra (additional) compensation, whether it be in the
form of a per diem or an honorarium or an allowance, or some
other such euphemism," it follows that petitioners who sit
as their alternates cannot likewise be entitled to receive
such compensation. A contrary rule would give petitioners a
better right than their principals.

We thus rule that in rendering its challenged Decision,

the COA did not gravely abuse its discretion.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 38
[G. R. No. 156982. September 8, 2004]
NATIONAL AMNESTY COMMISSION, petitioner,
vs. COMMISSION ON AUDIT, JUANITO G. ESPINO,
Director IV, NCR, Commission on Audit, and ERNESTO C.
EULALIA, Resident Auditor, National Amnesty
Commission. respondents.
DECISION
CORONA, J.:
This petition for review[1] seeks to annul the two decisions
of respondent Commission on Audit (COA) [2] dated July 26,
2001[3] and January 30, 2003,[4] affirming the September 21,
1998 ruling[5] of the National Government Audit Office (NGAO).
The latter in turn upheld Auditor Ernesto C. Eulalias order
disallowing the payment of honoraria to the representatives of
petitioners’ ex officio members, per COA Memorandum No.
97-038.
Petitioner National Amnesty Commission (NAC) is a
government agency created on March 25, 1994 by then
President Fidel V. Ramos through Proclamation No. 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.[6]
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 December 12, 1994. However, on October 15, 1997,
NAC resident auditor Eulalia disallowed on audit the
payment of honoraria to these representatives amounting
to P255, 750 for the period December 12, 1994 to June 27,
1997, pursuant to COA Memorandum No. 97-038. On
September 1, 1998, the NGAO upheld the auditors order and
notices of disallowance were subsequently issued to the
following:[7]
REPRESENTATIVES AMOUNT
1. Cesar Averilla
Department of National Defense P 2,500.00
2. Ramon Martinez
Department of National Defense 73,750.00
3. Cielito Mindaro,
Department of Justice 18,750.00
4. Purita Deynata
Department of Justice 62,000.00
5. Alberto Bernardo
Department of the Interior
And Local Government 71,250.00
6. Stephen Villaflor
Department of the Interior and
Local Government 26,250.00
7. Artemio Aspiras
Department of Justice 1,250.00
P255, 750.00
Meanwhile, on April 28, 1999, the NAC passed
Administrative Order No. 2 (the new Implementing Rules and
Regulations of Proclamation No. 347), which was approved by
then President Joseph Estrada on October 19, 1999. Section
1, Rule II thereof provides:
Section 1, Composition The NAC shall be composed of
seven (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 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. (Emphasis supplied)
Petitioner invoked Administrative Order No. 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 March 14, 2003, the NAC filed the present
petition, contending that the COA committed grave abuse of
discretion in: (1) implementing COA Memorandum No. 97-038
without the required notice and publication under Article 2 of
the Civil Code; (2) invoking paragraph 2, Section 7, Article IX-
B of the 1987 Constitution to sustain the disallowance
of honoraria under said Memorandum; (3) applying the
Memorandum to the NAC ex officio members representatives
who were all appointive officials with ranks below that of an
Assistant Secretary; (4) interpreting laws and rules outside of
its mandate and declaring Section 1, Rule II of Administrative
Order No. 2 null and void, and (5) disallowing the payment
of honoraria on the ground of lack of authority of
representatives to attend the NAC meetings in behalf of the ex
officio members.[8]
We hold that the position of petitioner NAC is against
the law and jurisprudence. The COA is correct that there is
no legal basis to grant per diem, honoraria or any allowance
whatsoever to the NAC ex officio members official
representatives.
The Constitution mandates the Commission on Audit to
ensure that the funds and properties of the government are
validly, efficiently and conscientiously used. Thus, Article IX-D
of the Constitution ordains the COA to exercise exclusive and
broad auditing powers over all government entities or trustees,
without any exception:
Section 2. (1) The Commission on Audit shall have the power,
authority and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held
in trust by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted fiscal
autonomy under this Constitution; (b) autonomous state
colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries; and (d) such
FINALS CONSTITUTION I ACJUCO 39
non-governmental entities receiving subsidy or equity, directly
or indirectly, from or through the government, which are
required by law of the granting institution to submit to such
audit as a condition of subsidy or equity. However, where the
internal control system of the audited agencies is inadequate,
the Commission may adopt such measures, including
temporary or special pre-audit, as are necessary and
appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and, for such period as may be
provided by law, preserve the vouchers and other supporting
papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to
the limitations in this Article, to define the scope of its audit
and examination, establish the techniques and methods
required therefor, and promulgate accounting and
auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary,
inexpensive, extravagant, or unconscionable
expenditures, or uses of government funds and
properties.
Section 3. No law shall be passed exempting any entity of
the Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the
Commission on Audit. (Emphasis supplied).
It is in accordance with this constitutional mandate that
the COA issued Memorandum No. 97-038 on September 19,
1997:
COMMISSION ON AUDIT MEMORANDUM NO. 97-038
SUBJECT: Implementation of Senate Committee Report No.
509, Committee on Accountability of Public Officers and
Investigations and Committee on Civil Service and
Government Reorganization.
The Commission received a copy of Senate Committee Report
No. 509 urging the Commission on Audit to immediately
cause the disallowance of any payment of any form of
additional compensation or remuneration to cabinet
secretaries, their deputies and assistants, or their
representatives, in violation of the rule on multiple
positions, and to effect the refund of any and all such
additional compensation given to and received by the
officials concerned, or their representatives, from the time
of the finality of the Supreme Court ruling in Civil Liberties
Union v. Executive Secretary to the present. In the Civil
Liberties Union case, the Supreme Court ruled that Cabinet
Secretaries, their deputies and assistants may not hold
any other office or employment. It declared Executive
Order 284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold other
offices in addition to their primary office and to receive
compensation therefor. The said decision became final
and executory on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the
national government agencies and government owned or
controlled corporations which have effected payment of
subject allowances, are directed to implement the
recommendation contained in the subject Senate Committee
Report by undertaking the following audit action:
1. On accounts that have not been audited and
settled under certificate of settlements and
balances on record from August 19, 1991 to
present to immediately issue the Notices of
disallowance and corresponding certificate
of settlements and balances.
2. On accounts that have been audited and settled
under certificate of settlements and balances
on record to review and re-open said accounts,
issue the corresponding notices of
disallowance, and certify a new balance
thereon. It is understood that the re-opening
of accounts shall be limited to those that
were settled within the prescriptive period
of three (3) years prescribed in Section 52
of P.D. 1445.
3. On disallowances previously made on these
accounts to submit a report on the status of the
disallowances indicating whether those have
been refunded/settled or have become final
and executory and the latest action taken by
the Auditor thereon.
All auditors concerned shall ensure that all documents
evidencing the disallowed payments are kept intact on file in
their respective offices.
Any problem/issue arising from the implementation of this
Memorandum shall be brought promptly to the attention of the
Committee created under COA Officer Order No. 97-698 thru
the Director concerned, for immediate resolution.
An initial report on the implementation of this Memorandum
shall be submitted to the Directors concerned not later than
October 31, 1997. Thereafter, a quarterly progress report on
the status of disallowances made shall be submitted, until all
the disallowances shall have been enforced.
The Committee created under COA Office Order No. 97-698,
dated September 10, 1997, shall supervise the implementation
of this Memorandum which shall take effect immediately and
shall submit a consolidated report thereon in response to the
recommendation of the Senate Committee on Accountability of
Public Officers and Investigation and Committee on Civil
Service and Government Reorganization. [9] (Emphasis
supplied)
Contrary to petitioners claim, COA Memorandum No. 97-
038 does not need, for validity and effectivity, the publication
required by Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it
is otherwise provided. This Code shall take effect one year
after such publication.
We clarified this publication requirement
in Taada vs. Tuvera:[10]
[A]ll statutes, including those of local application and private
laws, shall be published as a condition for their effectivity,
which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are 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, at present, directly
conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to
enforce or implement existing law pursuant to a valid
delegation.
FINALS CONSTITUTION I ACJUCO 40
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published.Neither is publication required of the so-called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. (Emphasis
supplied.)
COA Memorandum No. 97-038 is merely an internal
and interpretative regulation or letter of instruction which
does not need publication to be effective and valid. It is not
an implementing rule or regulation of a statute but a directive
issued by the COA to its auditors to enforce the self-executing
prohibition imposed by Section 13, Article VII of the
Constitution on the President and his official family, their
deputies and assistants, or their representatives from holding
multiple offices and receiving double compensation.
Six years prior to the issuance of COA Memorandum No.
97-038, the Court had the occasion to categorically explain this
constitutional prohibition in Civil Liberties Union
vs. TheExecutive Secretary:[11]
Petitioners maintain that this Executive Order which, in effect,
allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject to
the limitation therein imposed, runs counter to Section 13,
Article VII of the 1987 Constitution, which provides as follows:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
xxxxxxxxx
[D]oes the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies
or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference is quoted
anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their
subsidiaries."
We rule in the negative.
xxxxxxxxx
But what is indeed significant is the fact that although Section
7, Article IX-B already contains a blanket prohibition
against the holding of multiple offices or employment in
the government subsuming both elective and appointive
public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants
from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution
itself.
xxxxxxxxx
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by
law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B
is meant to lay down the general rule applicable to all
elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless
otherwise provided in this Constitution" in Section 13,
Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article IX-B of the 1987
Constitution. . . .
xxxxxxxxx
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying
to posts occupied by the Executive officials specified
therein without additional compensation in an ex-
officio capacity as provided by law and as required by the
primary functions of said officials' office. The reason is
that these posts do no comprise "any other office" within
the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions
on said officials.
xxxxxxxxx
[T]he prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law
and as required by the primary functions of the concerned
official's office. The term ex-officio means "from office; by
virtue of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex-officio
likewise denotes an "act done in an official character, or as a
consequence of office, and without any other appointment or
authority than that conferred by the office." An ex-officio
member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.
To illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officio Chairman
of the Board of the Philippine Ports Authority, and the Light Rail
Transit Authority.
xxxxxxxxx
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal
office. x x x
xxxxxxxxx
FINALS CONSTITUTION I ACJUCO 41
[E]x-officio posts held by the executive official concerned
without additional compensation as provided by law and
as required by the primary functions of his office do not
fall under the definition of "any other office" within the
contemplation of the constitutional
prohibition... (Emphasis supplied).
Judicial decisions applying or interpreting the laws or the
Constitution, such as the Civil Liberties Union doctrine, form
part of our legal system.[12] Supreme Court decisions assume
the same authority as valid statutes. [13] The Courts
interpretation of the law is part of that law as of the date of
enactment because its interpretation merely establishes the
contemporary legislative intent that the construed law purports
to carry into effect.[14]
COA Memorandum No. 97-038 does not, in any manner
or on its own, rule against or affect the right of any individual,
except those provided for under the Constitution. Hence,
publication of said Memorandum is not required for it to be
valid, effective and enforceable.
In Civil Liberties Union, we 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:
SEC. 54. Limitation on Appointment. (1) No elective official
shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.
xxxxxxxxx
(3) Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other office
or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
xxxxxxxxx
SEC. 56. Additional or Double Compensation. -- No elective or
appointive public officer or employee shall receive additional or
double compensation unless specifically authorized by law nor
accept without the consent of the President, any present,
emolument, office, or title of any kind form any foreign state.
Pensions and gratuities shall not be considered as additional,
double or indirect 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.
There is a considerable difference between an
appointment and designation. An appointment is the selection
by the proper authority of an individual who is to exercise the
powers and functions of a given office; a designation merely
connotes an imposition of additional duties, usually by law,
upon a person already in the public service by virtue of an
earlier appointment.[15]
Designation does not entail payment of additional
benefits or grant upon the person so designated the right to
claim the salary attached to the position. Without an
appointment, a designation does not entitle the officer to
receive the salary of the position. The legal basis of an
employees right to claim the salary attached thereto is a duly
issued and approved appointment to the position, [16] and not a
mere designation.
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, we 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[17] and Bitonio vs.
[18]
COA, we upheld COAs 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.
The Court also finds that the re-opening of the NAC
accounts within three years after its settlement is
within COAs jurisdiction under Section 52 of Presidential
Decree No. 1445, promulgated on June 11, 1978:
SECTION 52. Opening and revision of settled accounts. (1) At
any time before the expiration of three years after the
settlement of any account by an auditor, the Commission
may motupropio review and revise the account or settlement
and certify a new balance.
More importantly, the Government is never estopped by
the mistake or error on the part of its agents. [19] Erroneous
application and enforcement of the law by public officers do not
preclude subsequent corrective application of the statute.
In declaring Section 1, Rule II of Administrative Order No.
2 s. 1999 null and void, the COA ruled that:
Petitioner further contends that with the new IRR issued by the
NAC authorizing the ex-officio members to designate
representatives to attend commission meetings and entitling
FINALS CONSTITUTION I ACJUCO 42

them to receive per diems, honoraria and other allowances, prohibition of the Constitution and the finality of our decision
there is now no legal impediment since it was approved by the in Civil Liberties Union prior to their receipt of such allowances.
President. This Commission begs to disagree. Said provision
in the new IRR is null and void for having been promulgated in WHEREFORE the petition is hereby DISMISSED for
excess of its rule-making authority. Proclamation No. 347, the lack of merit.
presidential issuance creating the NAC, makes no mention that
SO ORDERED.
representatives of ex-officio members can take the place of
said ex-officio members during its meetings and can receive
per diems and allowances. This being the case, the NAC, in
the exercise of its quasi-legislative powers, cannot add,
expand or enlarge the provisions of the issuance it seeks to
implement without committing an ultra vires act.[20]

We find that, on its face, Section 1, Rule II of

Administrative Order No. 2 is valid, as it merely provides 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. (Emphasis
supplied).
The problem lies not in the administrative order but how
the NAC and the COA interpreted it.
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, as already discussed, 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. Section 4 of the administrative order categorically
states:

Decisions of the NAC shall be arrived at by a majority vote in a

meeting where there is a quorum consisting of at least four
members.

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, we disagree with NACs position that the
representatives are de facto officers and as such are entitled
to allowances, pursuant to our pronouncement in Civil Liberties
Union:

where there is no de jure officer, a de facto officer, who in good

faith has had possession of the office and has discharged the
duties pertaining thereto, is legally entitled to the emoluments
of the office, and may in appropriate action recover the salary,
fees and other compensation attached to the office.

A de facto officer derives his appointment from one

having colorable authority to appoint, if the office is an
appointive office, and whose appointment is valid on its face.
(He is) one who is in possession of an office and is discharging
its duties under color of authority, by which is meant authority
derived from an appointment, however irregular or informal, so
that the incumbent be not a mere volunteer. [21]
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
FINALS CONSTITUTION I ACJUCO 43
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE
M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA,
PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote
of eight (8) to seven (7), dismissed the petition, after finding
that the President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President
Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare
and in prohibiting their return to the Philippines. On September
28, 1989, former President Marcos died in Honolulu, Hawaii. In
a statement, President Aquino said:
In the interest of the safety of those who will take the death of
Mr. Marcos in widely and passionately conflicting ways, and for
the tranquility of the state and order of society, the remains of
Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide.
[Motion for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by
petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning
to the Philippines is to deny them not only the inherent right of
citizens to return to their country of birth but also the protection
of the Constitution and all of the rights guaranteed to Filipinos
under the Constitution;
2. The President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. There is no basis for barring the return of the family of former
President Marcos. Thus, petitioners prayed that the Court
reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos,
Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc,
Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains of
Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot and
academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the Marcoses
under the label 'right to return', including the label 'return of
Marcos' remains, is in reality or substance a 'right' to
destabilize the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization." [Comment, p.
29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to reconsider
the decision of the Court.
2. After a thorough consideration of the matters raised in the
motion for reconsideration, the Court is of the view that no
compelling reasons have been established by petitioners
to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario under
which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been
viewed to provide a catalytic effect, have not been shown
to have ceased. On the contrary, instead of erasing fears as
to the destabilization that will be caused by the return of the
Marcoses, Mrs. Marcos reinforced the basis for the decision to
bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the
"legal" President of the Philippines, and declared that the
matter "should be brought to all the courts of the world."
[Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant
of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly
enumerated in the article on the Executive Department
and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the
general grant of executive power.
That the President has powers other than those expressly
stated in the Constitution is nothing new. This is recognized
under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate
branches.
Article II, [section] 1, provides that "The Executive Power shall
be vested in a President of the United States of America." In
Alexander Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of
article II, section 1, and the conditional language of article I,
[section] 1: "All legislative Powers herein granted shall be
vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2 and
31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of
execution power; leaving the rest to flow from the general grant
of that power, interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court — accepted
Hamilton's proposition, concluding that the federal executive,
unlike the Congress, could exercise power from sources
FINALS CONSTITUTION I ACJUCO 44

not enumerated, so long as not forbidden by the

constitutional text: the executive power was given in
general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited
by direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the
constitutional concept of inherent power is not a synonym
for power without limit; rather, the concept suggests only that
not all powers granted in the Constitution are themselves
exhausted by internal enumeration, so that, within a sphere
properly regarded as one of "executive' power, authority is
implied unless there or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of

the President's implied or residual powers is tantamount to
setting the stage for another dictatorship. Despite petitioners'
strained analogy, the residual powers of the President under
the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister),

there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue
the necessary decrees, orders, or letters of instruction, which
shall form part of the law of the land,

There is no similarity between the residual powers of the

President under the 1987 Constitution and the power of the
President under the 1973 Constitution pursuant to Amendment
No. 6. First of all, Amendment No. 6 refers to an express grant
of power. It is not implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in

compliance with his (or her) oath of office, is to protect and
promote the interest and welfare of the people. Her
decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present
time and under present circumstances is in compliance
with this bounden duty. In the absence of a clear showing
that she had acted with arbitrariness or with grave abuse
of discretion in arriving at this decision, the Court will not
enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for

Reconsideration for lack of merit."
FINALS CONSTITUTION I ACJUCO 45
G.R. No. 189028 July 16, 2013
NATIONAL ARTIST FOR LITERATURE VIRGILIO
ALMARIO, NATIONAL ARTIST FOR LITERATURE
BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL
ARTS (PAINTING) BENEDICTO CABRERA, NATIONAL
ARTIST FOR VISUAL ARTS (SCULPTURE) NAPOLEON
ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL
ARTIST FOR PRODUCTION DESIGN SALVADOR BERNAL,
UNIVERSITY PROFESSOR EMERITUS GEMINO ABAD,
DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF LAW),
DEAN DANILO SILVESTRE (UP COLLEGE OF
ARCHITECTURE), DEAN ROLAND TOLENTINO (UP
COLLEGE OF MASS COMMUNICATION), PROF. JOSE
DALISAY, DR. ANTON JUAN, DR. ALEXANDER CORTEZ,
DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ REYES,
PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M.
COROZA, PROF. GERARD LICO, PROF. VERNE DE LA
PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE,
DR. CRISTINA PANTOJA-HIDALGO, PROF. JOSE
WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF.
NICOLO DEL CASTILLO, PROF. HORACIO DUMANLIG,
PROF. DANTON REMOTO, PROF. PRISCELINA
PATAJOLEGASTO, PROF. BELEN CALINGACION, PROF.
AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF.
MARILYN CANTA, PROF. CECILIA DELA PAZ, ROF.
CHARLSON ONG, PROF. CLOD MARLON YAMBAO,
PROF. KENNETH JAMANDRE, PROF. JETHRO JOAQUIN,
ATTY. F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX
ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S. LARA,
MR. ALFRED YUSON, MS. JING PANGANIBANMENDOZA,
MR. ROMULO BAQUIRAN, JR., MR. CARLJOE JAVIER,
MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D.
CUNADA, MS. LEAH NAVARRO, MR. MARK MEILLY, MR.
VERGEL O. SANTOS, MR. GIL OLEA MENDOZA, MR.
EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR.
ANGELO R. LACUESTA, MS. ANNA MARIA
KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY
PERIQUET, MS. CARLA PACIS, MR. J. ALBERT GAMBOA,
MR. CESAR EVANGELISTA BUENDIA, MR. PAOLO
ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND
MAGNO GARLITOS, MS. GANG BADOY, MR. LESLIE
BOCOBO, MS. FRANCES BRETANA, MS. JUDITH
TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-
DALISAY, MS. CAMILLE DE LA ROSA, MR. JAMES
LADIORAY, MR. RENATO CONSTANTINO, JR., and
CONCERNED ARTISTS OF THE PHILIPPINES
(CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, THE
CULTURAL CENTER OF THE PHILIPPINES, THE
NATIONAL COMMISSION ON CULTURE AND THE ARTS,
MS. CECILE GUIDOTE-ALVAREZ, MR. CARLO MAGNO
JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO
MANOSA, AND ALL PERSONS, PUBLIC AND PRIVATE,
ACTING UNDER THEIR INSTRUCTIONS, DIRECTION,
CONTROL AND SUPERVISION IN RELATION TO THE
CONFERMENT OF THE ORDER OF THE NATIONAL
ARTIST AND THE RELEASE OF FUNDS IN RELATION TO
THE CONFERMENT OF THE HONORS AND PRIVILEGES
OF THE ORDER OF NATIONAL ARTISTS ON
RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS,
MORENO AND MANOSA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Art has traditionally been viewed as the expression of
everything that is true, good and beautiful. As such, it is
perceived to evoke and produce a spirit of harmony. Art is also
considered as a civilizing force, a catalyst of nation-building.
The notion of art and artists as privileged expressions of
national culture helped shape the grand narratives of the
nation and shared symbols of the people. The artist does not
simply express his/her own individual inspiration but articulates
the deeper aspirations of history and the soul of the
people.2 The law recognizes this role and views art as
something that "reflects and shapes values, beliefs,
aspirations, thereby defining a people’s national
identity."3If unduly politicized, however, art and artists could
stir controversy and may even cause discord, as what
happened in this case.
The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E. Marcos
issued Proclamation No. 10014 and, upon recommendation
of the Board of Trustees of the Cultural Center of the
Philippines (CCP), created the category of Award and
Decoration of National Artist to be awarded to Filipinos who
have made distinct contributions to arts and letters. In the same
issuance, Fernando Amorsolo was declared as the first
National Artist.
On May 15, 1973, Proclamation No. 11445 was issued. It
amended Proclamation No. 1001 "by creating a National
Artists Awards Committee" that would "administer the
conferment of the category of National Artist" upon deserving
Filipino artists. The Committee, composed of members of the
Board of Trustees of the CCP, was tasked to "draft the rules to
guide its deliberations in the choice of National Artists, to the
end that those who have created a body of work in the arts and
letters capable of withstanding the test of time will be so
recognized."
The authority of the National Artists Awards Committee to
administer the conferment of the National Artist Award was
again reiterated in Presidential Decree No. 2086 issued on
June 7, 1973.
On April 3, 1992, Republic Act No. 7356, otherwise known as
the Law Creating the National Commission for Culture and
the Arts, was signed into law. It established the National
Commission for Culture and the Arts (NCCA) and gave it an
extensive mandate over the development, promotion and
preservation of the Filipino national culture and arts and
the Filipino cultural heritage. The NCCA was tasked with the
following:
Sec. 8. The Commission. – A National Commission for Culture
and Arts is hereby created to formulate policies for the
development of culture and arts; implement these policies in
coordination with affiliated cultural agencies; coordinate the
implementation of programs of these affiliated agencies;
administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic
freedom; develop and promote the Filipino national culture and
arts; and preserve Filipino cultural heritage. The Commission
shall be an independent agency. It shall render an annual
report of its activities and achievements to the President
and to Congress.
Among the specific mandates of the NCCA under Republic Act
No. 7356 is to "extend recognition of artistic achievement
through awards, grants and services to artists and cultural
groups which contribute significantly to the Filipino’s
cultural legacy."7 In connection with this mandate, the NCCA
FINALS CONSTITUTION I ACJUCO 46
is vested with the power to "advise the President on matters
pertaining to culture and the arts, including the creation of a
special decoration or award, for persons who have significantly
contributed to the development and promotion of Philippine
culture and arts."8
As both the CCP Board of Trustees and the NCCA have been
mandated by law to promote, develop and protect the
Philippine national culture and the arts, and authorized to give
awards to deserving Filipino artists, the two bodies decided to
team up and jointly administer the National Artists
Award.9 Thereafter, they reviewed the guidelines for the
nomination, selection and administration of the National Artists
Award. Pursuant to their respective powers to draft and
promulgate rules, regulations and measures to guide them in
their deliberations in the choice of National Artists, the CCP
and NCCA adopted the following revised guidelines in
September 200710:
4. ADMINISTRATION OF THE AWARD
4.1. The National Commission for Culture
and the Arts (NCCA) shall plan, organize
and implement the Order of National Artists
in coordination with the Cultural Center of
the Philippines (CCP).
4.2. It shall enlist the support and
cooperation of private sector experts from
the various fields of art to ensure that the
awards are implemented in a successful
and impartial manner.
4.3. The National Artist Award Secretariat
shall commission art experts to form a
Special Research Group who shall verify
information submitted on nominees and
provide essential data.
They shall be selected for their
specialization and familiarity with the works
and accomplishments of nominated artists.
4.4. The Special Research Group shall be
composed of ten (10) to twenty (20)
members who have expertise in one or
more fields or disciplines.
4.5. The National Artist Award Council of
Experts shall be created before or during
the nomination period. It is tasked to screen
nominees and recommend to the NCCA
and CCP Boards the candidates for the
Order of National Artists. It shall be
composed of highly regarded peers,
scholars, (including cultural philosophers
and historians), academicians,
researchers, art critics, and other
knowledgeable individuals. A wider age-
range of experts who would have first-hand
knowledge of achievements of nominees
shall be considered.
4.6. The selection of the members of the
National Artist Award Council of
Experts shall be based on the following
criteria:
(a) should have achieved
authority, credibility and track
record in his field(s) of expertise;
(b) should have extensive
knowledge in his field(s) and his
views on Philippine art and
culture must be national in
perspective;
(c) should be a recognized
authority in the study or research
of Philippine art and culture;
(d) must be willing to devote
sufficient time and effort to the
work of the Council;
(e) must be willing to sign a non-
disclosure statement in order to
safeguard the confidentiality of
the deliberations;
(f) must not have been convicted
with finality of any crime by a
court of justice or dismissed for
cause by any organization,
whether public or private.
4.7. The National Artist Award Council of
Experts shall be composed of a maximum
of seven (7) members each of the seven (7)
areas/disciplines. The living National
Artists will automatically become members
in addition to the forty-nine (49) selected
members. These members will constitute
the first deliberation panel and will be
invited to evaluate the nominations and
materials submitted by the Special
Research Group.
4.8. Any member of the Council of Experts
who is nominated or related to a nominee
up to the fourth degree of consanguinity or
affinity shall inhibit himself/herself from the
deliberation process. Likewise, any
member may decline to participate in the
deliberation for any reason or may be
removed for just cause upon
recommendation to the NCCA Board by at
least two thirds (2/3) of the members; in
which case, the National Artist Award
Secretariat shall again select the
replacements for those who decline or
resigned until the first deliberation panel is
completed.
4.9. The list of nominated members of the
National Artist Award Council of Experts
shall be reviewed by the National Artist
Award Secretariat as needed, for purposes
of adding new members or replacements.
4.10. The members of the National Artist
Award Council of Experts shall serve for a
fixed term of three (3) years.
FINALS CONSTITUTION I ACJUCO 47
5. CRITERIA FOR SELECTION
The Order of National Artists shall be given
to:
5.1 Living artists who are Filipino citizens at
the time of nomination, as well as those
who died after the establishment of the
award in 1972 but were Filipino citizens at
the time of their death.
5.2 Artists who through the content and
form of their works have contributed in
building a Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode
of creative expression or style, thus,
earning distinction and making an impact
on succeeding generations of artists.
5.4. Artists who have created a substantial
and significant body of works and/or
consistently displayed excellence in the
practice of their art form thus enriching
artistic expression or style.
5.5 Artists who enjoy broad acceptance
through:
5.5.1. prestigious national and/or
international recognition, such as
the Gawad CCP Para sa Sining,
CCP Thirteen Artists Award and
NCCA Alab ng Haraya
5.5.2. critical acclaim and/or
reviews of their works
5.5.3. respect and esteem from
peers.
6. NOMINATION PROCEDURE
6.1. The National Artist Award Secretariat
shall announce the opening of nominations
through media releases and letters to
qualified organizations.
6.2. Candidates may be nominated under
one or more of the following categories:
6.2.1. Dance – choreography, direction
and/or performance.
6.2.2. Music – composition, direction,
and/or performance.
6.2.3. Theater – direction, performance
and/or production design.
6.2.4. Visual Arts – painting, sculpture,
printmaking, photography, installation art,
mixed media works, illustration,
comics/komiks, graphic arts, performance
art and/or imaging.
6.2.5. Literature – poetry, fiction (short
story, novel and play); non-fiction (essay,
journalism, literary criticism and historical
literature).
6.2.6. Film and Broadcast Arts – direction,
writing, production design,
cinematography, editing, camera work,
and/or performance.
6.2.7. Architecture, Design and Allied Arts
– architecture design, interior design,
industrial arts design, landscape
architecture and fashion design.
6.3. Nominations for the Order of National
Artists may be submitted by government
and non-government cultural organizations
and educational institutions, as well as
private foundations and councils.
6.4. Members of the Special Research
Group, as well as agencies attached to the
NCCA and CCP shall not submit
nominations.
6.5. NCCA and CCP Board members and
consultants and NCCA and CCP officers
and staff are automatically disqualified from
being nominated.
6.6. Nominations shall be accepted only
when these are submitted in writing and
with proper supporting documentation, as
follows:
6.6.1. A cover letter signed by the
head or designated
representative of the nominating
organization.
The cover letter shall be
accompanied by a Board
Resolution approving the
nominee concerned with the said
resolution signed by the
organization President and duly
certified by the Board Secretary.
6.6.2. A duly accomplished
nomination form;
6.6.3. A detailed curriculum vitae
of the nominee;
6.6.4. A list of the nominee’s
significant works categorized
according to the criteria;
6.6.5. The latest photograph
(color or black and white) of the
nominee, either 5" x 7" or 8" x 11";
6.6.6. Pertinent information
materials on the nominee’s
significant works (on CDs, VCDs
and DVDs);
FINALS CONSTITUTION I ACJUCO 48
6.6.7. Copies of published
reviews;
6.6.8. Any other document that
may be required.
6.7. Nominations received beyond the
announced deadline for the submission of
nominations shall not be considered.
6.8. The National Artist Award Secretariat
shall announce the opening of nominations
through media releases.
6.9. All inquiries and nominations shall be
submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director Cultural Center of the Philippines
Roxas Boulevard, 1300 Pasay City or The NATIONAL ARTIST
AWARD SECRETARIAT Office of the Deputy Executive
Director National Commission for Culture and the Arts 633
General Luna Street, Intramuros, Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat
shall pre-screen the nominees based on
technical guideline items 5.1, 6.2, 6.3, 6.4,
6.5 and 6.6. The pre-screening shall not be
based on the accomplishments and merits
of the nominee.
7.2. The Special Research Group shall
accomplish its task within six (6) months.
The main objective is to verify the validity of
the data, and evaluate the quality, true
value and significance of works according
to the criteria. It shall come up with the
updated and comprehensive profiles of
nominees reflecting their most outstanding
achievements.
7.3. The National Artist Award Secretariat
will meet to review the list of nominees for
oversights. Consequently, deserving
nominees shall be added to the list.
7.4. The first deliberation panel (Council of
Experts) shall be intra-disciplinary. The
panelists shall be grouped according to
their respective fields of expertise or
disciplines to shortlist the nominees in their
disciplines or categories for presentation to
the second deliberation panel.
7.5. The second deliberation panel shall be
composed of a different set of experts from
the first deliberation panel three (3) experts
each of the seven (7) areas/discipline and
may include members from varying
backgrounds such as critics and
academicians. The achievements of each
shortlisted nominee shall be presented by
one designated member of Council of
Experts. Then panel deliberates and ranks
the shortlisted nominees according to the
order of precedence following the set
criteria of the Order of National Artists. In
extreme cases, the Second Deliberation
may add new names to the lists.
7.6. The second deliberation panel may
recommend not to give award in any
category if no nominee is found deserving.
The number of awardees shall also depend
on the availability of funds. All decisions
and recommendations shall be in writing.
7.7. The recommendations from the
Second Deliberation Panel of the National
Artist Award Council of Experts shall then
be presented to the joint boards of NCCA
and CCP for final selection. The presentors
shall prepare their presentation in writing
together with an audio-visual presentation
or powerpoint presentation. Written
interpellations/opinions will be accepted
from selected critics. The review shall be
based on the ranking done by the Second
Deliberation. The voting shall be across
disciplines. The National Artists will be
given the option whether to vote on all
categories or on his/her particular
discipline.
7.8. Proxy votes will not be allowed in the
Selection Process. Designation of
permanent representatives of agencies
should be made at the outset to make them
regular Board members of NCCA and thus,
may be allowed to cast votes.
7.9. The list of awardees shall be submitted
to the President of the Republic of the
Philippines for confirmation, proclamation
and conferral.
8. PRESENTATION OF THE AWARDS
8.1. The Order of National Artists shall not
be conferred more frequently than every
three (3) years.
8.2. The Order of National Artists shall be
conferred by the President of the
Philippines on June 11 or any appropriate
date in fitting ceremonies to be organized
by the National Artist Secretariat.
8.3. The medallion of the Order of National
Artists and citation shall be given to the
honoree during the conferment ceremony.
The cash award of ₱100,000.00 in cheque
shall be given immediately after the
ceremony or at another time and place as
requested by the honoree.
8.4. A posthumous conferral consisting of
the medallion and citation shall be given to
the family or legal heir/s of the honoree.
The cash award of ₱75,000.00 in cheque
shall be given to the honoree’s legal heir/s
or a representative designated by the
family immediately after the ceremony or at
another time and place as requested by the
family. (Emphases supplied.)
FINALS CONSTITUTION I ACJUCO 49
In 1996, the NCCA and the CCP created a National Artist
Award Secretariat composed of the NCCA Executive Director
as Chairperson, the CCP President as Vice-Chairperson, and
the NCCA Deputy Executive Director, the CCP Vice-
President/Artistic Director, the NCCA National Artist Award
Officer and the CCP National Artist Award Officer as members.
They also centralized with the NCCA all financial resources
and management for the administration of the National Artists
Award. They added another layer to the selection process to
involve and allow the participation of more members of the arts
and culture sector of the Philippines in the selection of who
may be proclaimed a National Artist.
On September 19, 2003, Executive Order No. 236, s. 2003,
entitled Establishing the Honors Code of the Philippines to
Create an Order of Precedence of Honors Conferred and
for Other Purposes, was issued. The National Artists Award
was renamed the Order of National Artists and raised to the
level of a Cultural Order, fourth in precedence among the
orders and decorations that comprise the Honors of the
Philippines. Executive Order No. 236, s. 2003, recognizes the
vital role of the NCCA and the CCP in identifying Filipinos who
have made distinct contributions to arts and letters and states
that the National Artist recognition is conferred "upon the
recommendation of the Cultural Center of the Philippines and
the National Commission for Culture and the Arts."12 Executive
Order No. 236, s. 2003, further created a Committee on Honors
to "assist the President in evaluating nominations for
recipients of Honors,"13 including the Order of National
Artists, and presidential awards. The Committee on Honors
has been allowed to "authorize relevant department or
government agencies to maintain Honors and/or Awards
Committees to process nominations for Honors and/or
Presidential Awards."14 In this connection, Section 2.4(A) of
the Implementing Rules and Regulations 15 of Executive Order
No. 236, s. 2003, states:
2.4: Awards Committees
There shall be two types of awards committees: the
Committee on Honors and the various awards committees in
the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards
Committee. It is composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be
submitted to the Committee on Honors via the Chancellery of
Philippine Orders and State Decorations. The Chancellery
shall process nominations for the consideration of the
Committee on Honors. The Committee on Honors shall screen
and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a
screening committee to ensure that nominations received
from the various awards committees meet two tests: that
there has not been an abuse of discretion in making the
nomination, and that the nominee is in good standing. Should
a nomination meet these criteria, a recommendation to the
President for conferment shall be made.
The President of the Philippines takes the
recommendations of the Committee on Honors in the
highest consideration when making the final decision on
the conferment of awards. (Emphasis supplied.)
Executive Order No. 435, s. 2005, entitled Amending Section
5(IV) of Executive Order No. 236 Entitled "Establishing the
Honors Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for Other Purposes"
was subsequently issued on June 8, 2005. It amended the
wording of Executive Order No. 236, s. 2003, on the Order of
National Artists and clarified that the NCCA and the CCP "shall
advise the President on the conferment of the Order of National
Artists."
Controversy Surrounding the 2009 Order of National
Artists
Petitioners alleged that on January 30, 2007, a joint meeting
of the NCCA Board of Commissioners and the CCP Board of
Trustees was held to discuss, among others, the evaluation of
the 2009 Order of National Artists and the convening of the
National Artist Award Secretariat. The nomination period
was set for September 2007 to December 31, 2007, which was
later extended to February 28, 2008. The pre-screening of
nominations was held from January to March 2008.16
On April 3, 2009, the First Deliberation Panel met. 17 A total of
87 nominees18 were considered during the deliberation and a
preliminary shortlist19 of 32 names was compiled.
On April 23, 2009, the Second Deliberation Panel purportedly
composed of an entirely new set of Council of Experts met and
shortlisted 13 out of the 32 names in the preliminary
shortlist.20 On May 6, 2009, the final deliberation was
conducted by the 30-member Final Deliberation Panel
comprised of the CCP Board of Trustees and the NCCA Board
of Commissioners and the living National Artists. 21 From the 13
names in the second shortlist, a final list of four names was
agreed upon.22 The final list, according to rank, follows:
Name Art Field/Category Number of
Votes
Manuel Conde (+) Film and Broadcast Arts 26
(Film)
Ramon Santos Music 19
Lazaro Francisco Literature 15
(+)
Federico Aguilar- Visual Arts 15
Alcuaz
On May 6, 2009, a letter, signed jointly by the Chairperson of
the NCCA, Undersecretary Vilma Labrador, and the President
and Artistic Director of the CCP, Mr. Nestor Jardin, was sent to
the President.23 The letter stated, thus:
FINALS CONSTITUTION I ACJUCO 50

May 6, 2009 The Committee on Honors thereafter submitted a

memorandum to then President Gloria Macapagal-Arroyo
Her Excellency GLORIA MACAPAGAL-ARROYO recommending the conferment of the Order of National Artists
on the four recommendees of the NCCA and the CCP Boards,
President of the Philippines
Malacañan Palace, Manila as well as on private respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno. Acting on this recommendation,
Proclamation No. 1823 declaring Manuel Conde a National
Subject: 2009 Order of National Artist Awardees Artist was issued on June 30, 2009. Subsequently, on July 6,
2009, Proclamation Nos. 1824 to 1829 were issued
Dear President Arroyo: declaring Lazaro Francisco, Federico Aguilar Alcuaz and
private respondents Guidote-Alvarez, Caparas, Mañosa
and Moreno, respectively, as National Artists. This was
We are respectfully submitting a recommendation of the NCCA subsequently announced to the public by then Executive
Board of Trustees and CCP Board of Trustees for the Secretary Eduardo Ermita on July 29, 2009. 26
Proclamation of the following as 2009 Order of National Artists:
Convinced that, by law, it is the exclusive province of the
1. Mr. MANUEL CONDE+ (Posthumous) – NCCA Board of Commissioners and the CCP Board of
Film and Broadcast Arts Trustees to select those who will be conferred the Order
of National Artists and to set the standard for entry into that
2. Dr. RAMON SANTOS – Music select group, petitioners instituted this petition for prohibition,
certiorari and injunction (with prayer for restraining order)
praying that the Order of National Artists be conferred on
3. Mr. LAZARO FRANCISCO+ Dr. Santos and that the conferment of the Order of
(Posthumous) – Literature National Artists on respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno be enjoined and declared to
4. Mr. FEDERICO AGUILAR-ALCUAZ – have been rendered in grave abuse of discretion.27
Visual Arts
In a Resolution28 dated August 25, 2009, the Court issued a
The above persons were identified by experts in the status quo order29 enjoining "public respondents" "from
various fields of arts and culture, including living National conferring the rank and title of the Order of National Artists on
Artists. An intensive selection process was observed following private respondents; from releasing the cash awards that
established practice. In the past, awards were presented by accompany such conferment and recognition; and from
the President at a Ceremony held at the Malacañan Palace holding the acknowledgment ceremonies for recognition of the
followed by a program called "Parangal" at the Cultural Center private respondents as National Artists."
of the Philippines. We also propose to continue with past
practice of celebrating the life and works of the four (4) Order What is the nature and scope of the power of the President
of National Artists through an exhibit that will open and a to confer the Order of the National Artists and how should
commemorative publication that will be released on the day of it be exercised? This is the essential issue presented in this
the proclamation. case. It will determine whether the proclamation of
respondents as National Artists is valid. Preliminary procedural
We respectfully suggest, subject to Her Excellency’s issues on the standing of the petitioners and the propriety of
availability, that the Proclamation be on June 11, 2009, if the remedies taken,30 however, call for resolution as a
possible at the Malacañan Palace. prerequisite to the discussion of the main question.

Thank you for your kind attention. Contention of the Parties

Very respectfully yours, A perusal of the pleadings submitted by the petitioners reveals
that they are an aggrupation of at least three groups, the
National Artists, cultural workers and academics, and the
(Sgd.)
Concerned Artists of the Philippines (CAP). The National
VILMA L. LABRADOR
Artists assert an "actual as well as legal interest in maintaining
Chairman
the reputation of the Order of National Artists."31 In particular,
National Commission for Culture and the Arts
they invoke their right to due process not to have the honor
they have been conferred with diminished by the irregular and
(Sgd.) questionable conferment of the award on respondents
NESTOR O. JARDIN Guidote-Alvarez, Caparas, Mañosa and Moreno. For
President and Artistic Director petitioners, this would adversely affect their right to live a
Cultural Center of the Philippines 24 meaningful life as it detracts not only from their right to
enjoy their honor as a fruit of their lifelong labor but also
According to respondents, the aforementioned letter was from the respect of their peers.32
referred by the Office of the President to the Committee on
Honors. Meanwhile, the Office of the President allegedly The cultural workers, academics and CAP claim to be Filipinos
received nominations from various sectors, cultural who are deeply concerned with the preservation of the
groups and individuals strongly endorsing private country’s rich cultural and artistic heritage. As taxpayers, they
respondents Cecile Guidote-Alvarez, Carlo Magno Jose are concerned about the use of public monies for illegal
Caparas, Francisco Mañosa and Jose Moreno. The appointments or spurious acts of discretion. 33
Committee on Honors purportedly processed these
nominations and invited resource persons to validate the
All of the petitioners claim that former President Macapagal-
qualifications and credentials of the nominees. 25
Arroyo gravely abused her discretion in disregarding the
results of the rigorous screening and selection process for the
Order of National Artists and in substituting her own choice for
FINALS CONSTITUTION I ACJUCO 51
those of the Deliberation Panels. According to petitioners,
the President’s discretion to name National Artists is not
absolute but limited. In particular, her discretion on the matter
cannot be exercised in the absence of or against the
recommendation of the NCCA and the CCP. In adding the
names of respondents Caparas, Guidote-Alvarez, Mañosa and
Moreno while dropping Dr. Santos from the list of conferees,
the President’s own choices constituted the majority of the
awardees in utter disregard of the choices of the NCCA and
the CCP and the arts and culture community which were
arrived at after a long and rigorous process of screening and
deliberation. Moreover, the name of Dr. Santos as National
Artist for Music was deleted from the final list submitted by the
NCCA and the CCP Boards without clearly indicating the basis
thereof. For petitioners, the President’s discretion to name
National Artists cannot be exercised to defeat the
recommendations made by the CCP and NCCA Boards after
a long and rigorous screening process and with the benefit of
expertise and experience. The addition of four names to the
final list submitted by the Boards of the CCP and the
NCCA and the deletion of one name from the said list
constituted a substitution of judgment by the President
and a unilateral reconsideration without clear justification
of the decision of the First, Second and Final Deliberation
Panels composed of experts.34
Petitioners further argue that the choice of respondent
GuidoteAlvarez was illegal and unethical because, as the then
Executive Director of the NCCA and presidential adviser on
culture and arts, she was disqualified from even being
nominated.35 Moreover, such action on the part of the former
President constituted grave abuse of discretion as it gave
preferential treatment to respondent Guidote-Alvarez by
naming the latter a National Artist despite her not having been
nominated and, thus, not subjected to the screening process
provided by the rules for selection to the Order of National
Artists. Her inclusion in the list by the President represented a
clear and manifest favor given by the President in that she was
exempted from the process that all other artists have to
undergo. According to petitioners, it may be said that the
President used a different procedure to qualify respondent
Guidote-Alvarez. This was clearly grave abuse of discretion for
being manifest and undue bias violative of the equal protection
clause.36
Respondent Caparas refutes the contention of the petitioning
National Artists and insists that there could be no prejudice to
the latter. They remain to be National Artists and continue to
receive the emoluments, benefits and other privileges
pertaining to them by virtue of that honor. On the other hand,
all the other petitioners failed to show any material and
personal injury or harm caused to them by the conferment of
the Order of National Artists on respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno. The rule on standing may not
be relaxed in favor of the petitioners as no question of
constitutionality has been raised and no issue of
transcendental importance is involved.37
Respondent Caparas further argues that the remedies of
prohibition and injunction are improper as the act sought to be
enjoined – the declaration of respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno as National Artists – had
already been consummated. In particular, respondent Caparas
was already proclaimed National Artist through Proclamation
No. 1827 issued on July 6, 2009.38
On the merits, respondent Caparas contends that no grave
abuse of discretion attended his proclamation as National
Artist. The former President considered the respective
recommendations of the NCCA and the CCP Boards and of
the Committee on Honors in eventually declaring him
(Caparas) as National Artist. The function of the NCCA and the
CCP Boards is simply to advise the President. The award of
the Order of National Artists is the exclusive prerogative
of the President who is not bound in any way by the
recommendation of the NCCA and the CCP Boards. The
implementing rules and regulations or guidelines of the NCCA
cannot restrict or limit the exclusive power of the President to
select the recipients of the Order of National Artists. 39
For her part, in a letter40 dated March 11, 2010, respondent
Guidote-Alvarez manifested that she was waiving her right to
file her comment on the petition and submitted herself to the
Court’s discretion and wisdom.
Respondent Mañosa manifested that his creations speak for
themselves as his contribution to Filipino cultural heritage and
his worthiness to receive the award. Nonetheless, he
expressed his conviction that the Order of National Artists is
not a right but a privilege that he would willingly relinquish
should he be found not worthy of it. 41
Respondent Moreno did not file any pleading despite being
given several opportunities to do so. Hence, the Court
dispensed with his pleadings.42
In a Resolution dated July 12, 2011, this Court gave due
course to the petition and required the parties to file their
respective memoranda.43 Respondent Caparas filed his
memorandum on September 8, 2011,44 the CCP filed its
memorandum on September 19, 2011,45 respondent Mañosa
on September 20, 2011,46 and the Office of the Solicitor
General filed a manifestation stating that it is adopting its
comment as its memorandum on September 21,
2011.47 Respondent Moreno failed to file a Memorandum,
hence, the Court resolved to dispense with the
same.48Petitioners filed their Memorandum on May 14, 2012. 49
On the other hand, the original position of the Office of the
Solicitor General (OSG) was similar to that of respondent
Caparas.50 In a subsequent manifestation,51 however, the
OSG stated that the current Board of Commissioners of the
NCCA agree with the petitioners that the President cannot
honor as a National Artist one who was not recommended by
the joint Boards of the NCCA and the CCP. The implementing
rules and regulations of Executive Order No. 236, s. 2003,
recognized the binding character of the recommendation of the
NCCA and the CCP Boards and limited the authority of the
Committee on Honors to the determination that (1) there has
been no grave abuse of discretion on the part of the NCCA and
the CCP Boards in making the nomination, and (2) the
nominee is in good standing. Where a nomination meets the
said two criteria, a recommendation to the President to confer
the award shall be made.52
The OSG further argued that, while the President exercises
control over the NCCA and the CCP, the President has the
duty to faithfully execute the laws, including the NCCA-CCP
guidelines for selection of National Artists and the
implementing rules of Executive Order No. 236, s. 2003.
Moreover, the laws recognize the expertise of the NCCA and
the CCP in the arts and tasked them to screen and select the
artists to be conferred the Order of National Artists. Their
mandate is clear and exclusive as no other agency possesses
such expertise.53
The OSG also assailed the former President’s choice of
respondent Guidote-Alvarez for being contrary to Republic Act
No. 7356.54 Section 11 of the said law provides:
Sec. 11. Membership Restrictions. – During his/her term as
member of the Commission, a Commissioner shall not be
FINALS CONSTITUTION I ACJUCO 52
eligible for any grant, or such other financial aid from the
Commission as an individual: Provided, however, That he/she
may compete for grants and awards on the same level as other
artists one (1) year after his/her term shall have expired.
The omission of the word "award" in the first portion of the
above provision appears to be unintentional as shown by the
proviso which states that a member may compete for grants
and awards only one year after his or her term shall have
expired. As such, respondent Guidote-Alvarez is restricted and
disqualified from being conferred the 2009 Order of National
Artists.55
The Court’s Ruling
Standing of the Petitioners
Standing is the determination of whether a specific person is
the proper party to bring a matter to the court for
adjudication.56 The gist of the question of standing is whether
a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. 57
The parties who assail the constitutionality or legality of a
statute or an official act must have a direct and personal
interest. They must show not only that the law or any
governmental act is invalid, but also that they sustained or are
in immediate danger of sustaining some direct injury as a result
of its enforcement, and not merely that they suffer thereby in
some indefinite way. They must show that they have been or
are about to be denied some right or privilege to which they are
lawfully entitled or that they are about to be subjected to some
burdens or penalties by reason of the statute or act complained
of.58
In this case, we find that the petitioning National Artists will
be denied some right or privilege to which they are entitled
as members of the Order of National Artists as a result of
the conferment of the award on respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno. In particular, they
will be denied the privilege of exclusive membership in the
Order of National Artists.
In accordance with Section 2(a)59 of Executive Order No. 236,
s. 2003, the Order of National Artists is "an exclusive
association of honored individuals." To ensure the exclusivity
of the membership in the Order, a rigid nomination and
screening process has been established with different
sets of renowned artists and respected art critics invited
to sit as the Council of Experts for the First and Second
Deliberation Panels. Moreover, all living National Artists are
given a voice on who should be included in their exclusive club
as they automatically become members of the Final
Deliberation Panel that will vote on who should be included in
the final list to be submitted to the President for conferment of
the Order of National Artists. To allow the untrammeled
discretion and authority of the President to confer the
Order of National Artists without regard to the stringent
screening and rigorous selection process established by
the NCCA and the CCP will diminish, if not negate, the
exclusive nature of the said Order. It will unduly subject
the selection and conferment of the Order of National
Artists to politics rather than to principles and procedures.
It will subvert the transparent and rigorous process and
allow entry to the exclusive Order of National Artists
through a secret backdoor of lobbying, back channeling
and political accommodation.
Among the other petitioners, Prof. Gemino Abad presents a
unique valid personal and substantial interest. Like
respondents Caparas, Mañosa and Moreno, he was among
the 87 nominees for the 2009 Order of National Artists. Like
respondent Moreno, he made it to the preliminary shortlist. As
he did not make it to the second shortlist, he was not
considered by the Final Deliberation Panel, more so by the
former President.
It should be recalled too that respondent Guidote-Alvarez was
disqualified to be nominated for being the Executive Director of
the NCCA at that time while respondents Mañosa and Caparas
did not make it to the preliminary shortlist and respondent
Moreno was not included in the second shortlist. Yet, the four
of them were treated differently and considered favorably when
they were exempted from the rigorous screening process of
the NCCA and the CCP and conferred the Order of National
Artists. The Committee on Honors and the former President
effectively treated respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno as a preferred class. The special
treatment accorded to respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno fails to pass rational scrutiny. 60 No real
and substantial distinction between respondents and petitioner
Abad has been shown that would justify deviating from the
laws, guidelines and established procedures, and placing
respondents in an exceptional position. The undue
classification was not germane to the purpose of the law.
Instead, it contradicted the law and well-established
guidelines, rules and regulations meant to carry the law into
effect. While petitioner Abad cannot claim entitlement to the
Order of National Artists,61 he is entitled to be given an equal
opportunity to vie for that honor. In view of the foregoing, there
was a violation of petitioner Abad’s right to equal protection, an
interest that is substantial enough to confer him standing in this
case.
As regards the other concerned artists and academics as well
as the CAP, their claim of deep concern for the preservation of
the country’s rich cultural and artistic heritage, while laudable,
falls short of the injury in fact requirement of standing. Their
assertion constitutes a generalized grievance shared in a
substantially equal measure by all or a large class of
citizens.62 Nor can they take refuge in their status as taxpayers
as the case does not involve any illegal appropriation or
taxation. A taxpayer’s suit is proper only when there is an
exercise of the spending or taxing power of the Congress. 63
Nonetheless, as a reading of the petition shows that it has
advanced an issue which deserves the attention of this Court
in view of its seriousness, novelty and weight as precedent, it
behooves the Court to relax the rules on standing and to
resolve the issue presented before it. 64 Moreover, this issue is
of paramount interest,65 which further justifies a liberal stance
on standing.
Propriety of the Remedies
The present action is a petition for prohibition, certiorari,
injunction, restraining order and all other legal, just and
equitable reliefs.
It has been held that the remedies of prohibition and injunction
are preventive and, as such, cannot be availed of to restrain
an act that is already fait accompli. 66 Where the act sought to
be prohibited or enjoined has already been accomplished or
consummated, prohibition or injunction becomes moot. 67
Nevertheless, even if the principal issue is already moot, this
Court may still resolve its merits for the future guidance of both
bench and bar. Courts will decide a question otherwise moot
FINALS CONSTITUTION I ACJUCO 53
and academic if it is "capable of repetition, yet evading
review."68
It is an opportune time for the Court to assert its role as
republican schoolmaster,69 a teacher in a vital national
seminar.70 There are times when the controversy is of such
character that, to prevent its recurrence and to assure respect
for constitutional limitations, this Court must pass on the merits
of a case.71 This is one such case. More than being a teaching
moment, this is not the first time that the Order of National
Artists was conferred in the manner that is being assailed in
this case.72 If not addressed here and now, there is great
probability that the central question involved in this case will
haunt us again in the future. Every President may invoke
absolute presidential prerogative and thrust upon us National
Artists after his or her own heart, in total disregard of the advise
of the CCP and the NCCA and the voice of the community of
artists, resulting to repeated episodes of indignation and
uproar from the artists and the public.
Furthermore, if not corrected, such an act would give rise to
mischief and dangerous precedent whereby those in the
corridors of power could avoid judicial intervention and review
by merely speedily and stealthily completing the commission
of an illegality.73
In any event, the present petition is also for certiorari and there
is no procedural bar for the Court to pass upon the question of
whether the proclamations of respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno as National Artists were
attended by grave abuse of presidential discretion.
Limits of the President’s Discretion
The respective powers of the CCP Board of Trustees and of
the NCCA Board of Commissioners with respect to the
conferment of the Order of National Artists are clear. They
jointly administer the said award and, upon their
recommendation or advice, the President confers the
Order of National Artists.
To "recommend" and to "advise" are synonymous. To
"recommend" is "to advise or counsel."74 To "advise" is "to give
an opinion or counsel, or recommend a plan or course of
action; also to give notice. To encourage, inform or
acquaint."75 "Advise" imports that it is discretionary or optional
with the person addressed whether he will act on such advice
or not.76 This has been clearly explained in Cojuangco, Jr. v.
Atty. Palma77:
The "power to recommend" includes the power to give
"advice, exhortation or indorsement, which is essentially
persuasive in character, not binding upon the party to
whom it is made." (Emphasis supplied.)
Thus, in the matter of the conferment of the Order of National
Artists, the President may or may not adopt the
recommendation or advice of the NCCA and the CCP
Boards. In other words, the advice of the NCCA and the
CCP is subject to the President’s discretion.
Nevertheless, the President’s discretion on the matter is not
totally unfettered, nor the role of the NCCA and the CCP
Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams
wherever it pleases but is reined in to keep it from straying. In
its classic formulation, "discretion is not unconfined and
vagrant" but "canalized within banks that keep it from
overflowing."78
The President’s power must be exercised in accordance
with existing laws. Section 17, Article VII of the
Constitution prescribes faithful execution of the laws by
the President:
Sec. 17. The President shall have control of all the
executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed. (Emphasis
supplied.)
The President’s discretion in the conferment of the Order
of National Artists should be exercised in accordance with
the duty to faithfully execute the relevant laws. The faithful
execution clause is best construed as an obligation imposed
on the President, not a separate grant of power. 79 It simply
underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is obliged
to obey and execute them.80 This is precisely why the law
provides that "administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the
laws or the Constitution."81
In this connection, the powers granted to the NCCA and the
CCP Boards in connection with the conferment of the Order of
National Artists by executive issuances were institutionalized
by two laws, namely, Presidential Decree No. 208 dated June
7, 1973 and Republic Act No. 7356. In particular, Proclamation
No. 1144 dated May 15, 1973 constituted the CCP Board as
the National Artists Awards Committee and tasked it to
"administer the conferment of the category of National Artist"
upon deserving Filipino artists with the mandate to "draft the
rules to guide its deliberations in the choice of National Artists":
Proclamation No. 1001 dated April 27, 1972, creating the
Award and Decoration of National Artist, is hereby amended
by creating a National Artists Awards Committee, hereinafter
to administer the conferment of the category of National Artist
upon those deserving thereof. The Committee, which shall be
composed of members of the Board of Trustees of the Cultural
Center of the Philippines, shall organize itself immediately and
shall draft the rules to guide its deliberations in the choice of
National Artists, to the end that those who have created a body
of work in the arts and in letters capable of withstanding the
test of time will be so recognized. (Emphases supplied.)
The authority of the CCP Board of Trustees as National Artists
Awards Committee was reiterated in Presidential Decree No.
208 dated June 7, 1973.
The function of the CCP Board of Trustees as National Artists
Awards Committee has been recognized under Republic Act
No. 7356:
Sec. 18. The National Cultural Agencies. – The [NCCA] shall
coordinate with the national cultural agencies including but not
limited to the Cultural Center of the Philippines, the Institute of
Philippine Languages, the National Historical Institute, the
National Library, the National Museum, the Records
Management and Archives Office. However, they shall
continue operating under their respective charters or as
provided by law where provisions therein are not inconsistent
with the provisions of this Act. They shall serve as the national
repository and/or showcase, as the case may be, of the best
of Philippine culture and arts. For this purpose, these agencies
shall submit periodic reports, including recommendations to
the [NCCA]. (Emphasis supplied.)
On the other hand, the NCCA has been given the following
mandate in connection with the conferment of cultural or arts
awards:
FINALS CONSTITUTION I ACJUCO 54
Sec. 12. Mandate. – The Commission is hereby mandated to
formulate and implement policies and plans in accordance with
the principles stated in Title 1 of this Act.
(a) To encourage the continuing and balanced
development of a pluralistic culture by the people
themselves, it shall:
xxxx
(4) extend recognition of artistic achievement through
awards, grants and services to artists and cultural
groups which contribute significantly to the Filipino’s
cultural legacy;
xxxx
Sec. 13. Powers and Functions. – To carry out its
mandate, the Commission shall exercise the
following powers and functions:
xxxx
(j) advise the President on matters pertaining to
culture and the arts, including the creation of a
special decoration or award, for persons who have
significantly contributed to the development and
promotion of Philippine culture and arts;
(k) promulgate rules, regulations and undertake any
and all measures as may be necessary to implement
this Act. (Emphases supplied.)
By virtue of their respective statutory mandates in connection
with the conferment of the National Artist Award, the NCCA
and the CCP decided to work together and jointly administer
the National Artist Award. They reviewed the guidelines for the
nomination, selection and administration of the National Artist
Award, created a National Artist Award Secretariat, centralized
all financial resources and management for the administration
of the National Artist Award, and added another layer to the
selection process so that more members of the arts and culture
sector of the Philippines may be involved and participate in the
selection of National Artists.
We have held that an administrative regulation adopted
pursuant to law has the force and effect of law.82 Thus, the
rules, guidelines and policies regarding the Order of National
Artists jointly issued by the CCP Board of Trustees and the
NCCA pursuant to their respective statutory mandates have
the force and effect of law. Until set aside, they are binding
upon executive and administrative agencies, 83 including the
President himself/herself as chief executor of laws. In this
connection, Section 2.5(A) of the Implementing Rules and
Regulations84 of Executive Order No. 236, s. 2003 provides:
2.5: General Guidelines for Awards Committees
A. National Orders of Cultural and Scientific Merit
The existing modalities of the NCCA for selecting recipients for
the Order of National Artists, and the Gawad sa Manlilikha ng
Bayan, and of the NAST for selecting recipients of the Order of
National Scientists, shall remain in force. (Emphases
supplied.)
Section 2.4(A) of the same implementing rules further states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee
on Honors and the various awards committees in the various
units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards
Committee. It is composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be
submitted to the Committee on Honors via the Chancellery of
Philippine Orders and State Decorations. The Chancellery
shall process nominations for the consideration of the
Committee on Honors. The Committee on Honors shall screen
and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a
screening committee to ensure that nominations received from
the various awards committees meet two tests: that there has
not been an abuse of discretion in making the nomination, and
that the nominee is in good standing. Should a nomination
meet these criteria, a recommendation to the President for
conferment shall be made.
The President of the Philippines takes the
recommendations of the Committee on Honors in the
highest consideration when making the final decision on
the conferment of awards. (Emphasis supplied.)
Pursuant to the above provision of the implementing rules of
Executive Order No. 236, s. 2003, the authority of the
Committee on Honors is limited to determining whether the
nominations submitted by a particular awards committee, in
this case, the joint NCCA and CCP Boards, have been tainted
by abuse of discretion, and whether the nominees are in good
standing. Should the nominations meet these two criteria, the
Committee on Honors shall make a recommendation to the
President for conferment of the Order of National Artists.
In view of the various stages of deliberation in the selection
process and as a consequence of his/her duty to faithfully
enforce the relevant laws, the discretion of the President in
the matter of the Order of National Artists is confined to
the names submitted to him/her by the NCCA and the CCP
Boards. This means that the President could not have
considered conferment of the Order of National Artists on
any person not considered and recommended by the
NCCA and the CCP Boards. That is the proper import of the
provision of Executive Order No. 435, s. 2005, that the NCCA
and the CCP "shall advise the President on the conferment of
the Order of National Artists." Applying this to the instant case,
the former President could not have properly considered
respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno, as their names were not recommended by the
FINALS CONSTITUTION I ACJUCO 55

NCCA and the CCP Boards. Otherwise, not only will the
stringent selection and meticulous screening process be
rendered futile, the respective mandates of the NCCA and
the CCP Board of Trustees under relevant laws to
administer the conferment of Order of National Artists,
draft the rules and regulations to guide its deliberations,
formulate and implement policies and plans, and
undertake any and all necessary measures in that regard
will also become meaningless.
Furthermore, with respect to respondent Guidote-Alvarez who
was the Executive Director of the NCCA at that time, the
Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and
NCCA and CCP officers and staff are automatically disqualified
from being nominated.85
declares that, as the former President committed grave abuse
of discretion in issuing Proclamation Nos. 1826 to 1829 dated
July 6, 2009, the said proclamations are invalid. However,
nothing in this Decision should be read as a disqualification on
the part of respondents Guidote-Alvarez, Caparas, Mañosa
and Moreno to be considered for the honor of National Artist in
the future, subject to compliance with the laws, rules and
regulations governing said award.
WHEREFORE, the petition is hereby GRANTED in PART.
Proclamation Nos. 1826 to 1829 dated July 6, 2009
proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno
Jose Caparas, Francisco Mañosa, and Jose Moreno,
respectively, as National Artists are declared INVALID and
SET ASIDE for having been issued with grave abuse of
discretion.

Respondent Guidote-Alvarez could not have even been SO ORDERED.

nominated, hence, she was not qualified to be considered and
conferred the Order of National Artists at that time. The
President’s discretion on the matter does not extend to
removing a legal impediment or overriding a legal restriction.

From the foregoing, the advice or recommendation of the

NCCA and the CCP Boards as to the conferment of the
Order of National Artists on Conde, Dr. Santos, Francisco
and Alcuaz was not binding on the former President but
only discretionary or optional for her whether or not to act
on such advice or recommendation. Also, by virtue of the
power of control, the President had the authority to alter
or modify or nullify or set aside such recommendation or
advice. It was well within the President’s power and
discretion to proclaim all, or some or even none of the
recommendees of the CCP and the NCCA Boards, without
having to justify his or her action. Thus, the exclusion of
Santos did not constitute grave abuse of discretion on the part
of the former President.

The conferment of the Order of National Artists on respondents

Guidote-Alvarez, Caparas, Mañosa and Moreno was an
entirely different matter.

There is grave abuse of discretion when an act is (1) done

contrary to the Constitution, the law or jurisprudence or (2)
executed whimsically, capriciously or arbitrarily, out of malice,
ill will or personal bias.86

There was a violation of the equal protection clause of the

Constitution87 when the former President gave
preferential treatment to respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno.1âwphi1 The former
President’s constitutional duty to faithfully execute the laws
and observe the rules, guidelines and policies of the NCCA and
the CCP as to the selection of the nominees for conferment of
the Order of National Artists proscribed her from having a free
and uninhibited hand in the conferment of the said award. The
manifest disregard of the rules, guidelines and processes
of the NCCA and the CCP was an arbitrary act that unduly
favored respondents Guidote-Alvarez, Caparas, Mañosa
and Moreno. The conferment of the Order of National Artists
on said respondents was therefore made with grave abuse of
discretion and should be set aside.

While the Court invalidates today the proclamation of

respondents Guidote-Alvarez, Caparas, Mañosa and Moreno
as National Artists, such action should not be taken as a
pronouncement on whether they are worthy to be conferred
that honor. Only the President, upon the advise of the NCCA
and the CCP Boards, may determine that. The Court simply
FINALS CONSTITUTION I ACJUCO 56
[G.R. No. 149724. August 19, 2003]
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, represented herein by its
Secretary, HEHERSON T. ALVAREZ, petitioner, vs. DENR
REGION 12 EMPLOYEES, represented by BAGUIDALI
KARIM, Acting President of COURAGE (DENR Region 12
Chapter), respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review assailing the Resolutions dated
May 31, 2000[1] of the Court of Appeals which dismissed the
petition for certiorari in CA-G.R. SP No. 58896, and its
Resolution dated August 20, 2001[2], which denied the motion
for reconsideration.
The facts are as follows:
On November 15, 1999, Regional Executive Director of the
Department of Environment and Natural Resources for
Region XII, Israel C. Gaddi, issued a Memorandum[3] directing
the immediate transfer of the DENR XII Regional Offices
from Cotabato City to Koronadal (formerly Marbel), South
Cotabato. The Memorandum was issued pursuant to DENR
Administrative Order No. 99-14, issued by then DENR
Secretary Antonio H. Cerilles, which reads in part:
Subject: Providing for the Redefinition of Functions and
Realignment of Administrative Units in the Regional and
Field Offices:
Pursuant to Executive Order No. 192, dated June 10, 1987
and as an interim administrative arrangement to improve the
efficiency and effectiveness of the Department of Environment
and Natural Resources (DENR) in delivering its services
pending approval of the government-wide reorganization by
Congress, the following redefinition of functions and
realignment of administrative units in the regional and field
offices are hereby promulgated:
Section 1. Realignment of Administrative Units:
The DENR hereby adopts a policy to establish at least one
Community Environment and Natural Resources Office
(CENRO) or Administrative Unit per Congressional District
except in the Autonomous Region of Muslim Mindanao
(ARMM) and the National Capital Region (NCR). The Regional
Executive Directors (REDs) are hereby authorized to
realign/relocate existing CENROs and implement this policy in
accordance with the attached distribution list per region which
forms part of this Order. Likewise, the following realignment
and administrative arrangements are hereby adopted:
xxxxxxxxx
1.6. The supervision of the Provinces of South Cotabato
and Sarangani shall be transferred from Region XI to XII.[4]
Respondents, employees of the DENR Region XII who are
members of the employees association, COURAGE,
represented by their Acting President, Baguindanai A. Karim,
filed with the Regional Trial Court of Cotabato, a petition for
nullity of orders with prayer for preliminary injunction.
On December 8, 1999, the trial court issued a temporary
restraining order enjoining petitioner from implementing the
assailed Memorandum. The dispositive portion of the Order
reads:
WHEREFORE, defendants DENR Secretary Antonio H.
Cerilles and Regional Executive Director Israel C. Gaddi are
hereby ordered to cease and desist from doing the act
complained of, namely, to stop the transfer of DENR [Region]
12 offices from Cotabato City to Korandal (Marbel), South
Cotabato.
xxx xxx xxx.
SO ORDERED.[5]
Petitioner filed a Motion for Reconsideration with Motion to
Dismiss, raising the following grounds:
I.
The power to transfer the Regional Office of the Department of
Environment and Natural Resources (DENR) is executive in
nature.
II.
The decision to transfer the Regional Office is based on
Executive Order No. 429, which reorganized Region XII.
III.
The validity of EO 429 has been affirmed by the Honorable
Supreme Court in the Case of Chiongbian vs. Orbos (1995)
245 SCRA 255.
IV.
Since the power to reorganize the Administrative Regions is
Executive in Nature citing Chiongbian, the Honorable Court
has no jurisdiction to entertain this petition.[6]
On January 14, 2000, the trial court rendered judgment, the
dispositive portion of which reads:
CONSEQUENTLY, order is hereby issued ordering the
respondents herein to cease and desist from enforcing their
Memorandum Order dated November 15, 1999 relative to the
transfer of the DENR Regional Offices from Region 12 to
Region 11 at Koronadal, South Cotabato for being bereft of
legal basis and issued with grave abuse of discretion
amounting to lack or excess of jurisdiction on their part,
and they are further ordered to return back the seat of the
DENR Regional Offices 12 to Cotabato City.
SO ORDERED.[7]
Petitioners’ motion for reconsideration was denied in an Order
dated April 10, 2000. A petition for certiorari under Rule 65 was
filed before the Court of Appeals, docketed as CA-G.R. SP No.
58896. The petition was dismissed outright for: (1) failure to
submit a written explanation why personal service was not
done on the adverse party; (2) failure to attach affidavit of
service; (3) failure to indicate the material dates when copies
of the orders of the lower court were received; (4) failure to
attach certified true copy of the order denying petitioners
motion for reconsideration; (5) for improper verification, the
same being based on petitioners knowledge and belief, and (6)
wrong remedy of certiorari under Rule 65 to substitute a lost
appeal.[8]
The motion for reconsideration was denied in a resolution
dated August 20, 2001.[9] Hence, this petition based on the
following assignment of errors:
I
FINALS CONSTITUTION I ACJUCO 57
RULES OF PROCEDURE CAN NOT BE USED TO DEFEAT
THE ENDS OF SUBSTANTIAL JUSTICE
II
THE DECISION OF THE LOWER COURT DATED 14
JANUARY 2000 WHICH WAS AFFIRMED IN THE
QUESTIONED RESOLUTIONS OF THE COURT OF
APPEALS DATED 31 MAY 2000 AND 20 AUGUST 2001 IS
PATENTLY ILLEGAL AND SHOULD BE NULLIFIED,
CONSIDERING THAT:
A. RESPONDENTS HAVE NO CAUSE OF ACTION AGAINST
PETITIONER AS THEY HAVE NO RIGHT TO CAUSE THE
DENR REGION 12 OFFICE TO REMAIN IN COTABATO
CITY.
B. THE STATE DID NOT GIVE ITS CONSENT TO BE SUED.
C. THE DECISION OF THE LOWER COURT DATED 14
JANUARY 2000 IS CONTRARY TO THE RULE OF
PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF OFFICIAL FUNCTIONS.
D. IN ANY EVENT, THE DECISION OF THE LOWER COURT
DATED 14 JANUARY 2000 IS CONTRARY TO THE LETTER
AND INTENT OF EXECUTIVE ORDER NO. 429 AND
REPUBLIC ACT NO. 6734.
E. THE DETERMINATION OF THE PROPRIETY AND
PRACTICALITY OF THE TRANSFER OF REGIONAL
OFFICES IS INHERENTLY EXECUTIVE, AND THEREFORE,
NON-JUSTICIABLE.[10]
In essence, petitioner argues that the trial court erred in
enjoining it from causing the transfer of the DENR XII Regional
Offices, considering that it was done pursuant to DENR
Administrative Order 99-14.
The issues to be resolved in this petition are: (1) Whether
DAO-99-14 and the Memorandum implementing the same
were valid; and (2) Whether the DENR Secretary has the
authority to reorganize the DENR.
Prefatorily, petitioner prays for a liberal application of
procedural rules considering the greater interest of justice.
This Court is fully aware that procedural rules are not to be
simply disregarded for these prescribed procedures ensure an
orderly and speedy administration of justice. However, it is
equally true that litigation is not merely a game of
technicalities. Time and again, courts have been guided by the
principle that the rules of procedure are not to be applied in a
very rigid and technical manner, as rules of procedure are used
only to help secure and not to override substantial
justice.[11] Thus, if the application of the Rules would tend to
frustrate rather than promote justice, it is always within the
power of this Court to suspend the rules, or except a particular
case from its operation.[12]
Despite the presence of procedural flaws, we find it necessary
to address the issues because of the demands of public
interest, including the need for stability in the public service and
the serious implications this case may cause on the effective
administration of the executive department. Although no
appeal was made within the reglementary period to appeal,
nevertheless, the departure from the general rule that the
extraordinary writ of certiorari cannot be a substitute for the lost
remedy of appeal is justified because the execution of the
assailed decision would amount to an oppressive exercise of
judicial authority.[13]
Petitioner maintains that the assailed DAO-99-14 and the
implementing memorandum were valid and that the trial court
should have taken judicial notice of Republic Act No. 6734,
otherwise known as An Organic Act for the Autonomous
Region in Muslim Mindanao, and its implementing
Executive Order 429,[14] as the legal bases for the issuance of
the assailed DAO-99-14. Moreover, the validity of R.A. No.
6734 and E.O. 429 were upheld in the case of Chiongbian v.
Orbos.[15] Thus, the respondents cannot, by means of an
injunction, force the DENR XII Regional Offices to remain in
Cotabato City, as the exercise of the authority to transfer the
same is executive in nature.
It is apropos to reiterate the elementary doctrine of qualified
political agency, thus:
Under this doctrine, which recognizes the establishment
of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious
executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular
course of business, are, unless disapproved or reprobated
by the Chief Executive, presumptively the acts of the Chief
Executive.[16]
This doctrine is corollary to the control power of the President
as provided for under Article VII, Section 17 of the 1987
Constitution, which reads:
Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
However, as head of the Executive Department, the President
cannot be expected to exercise his control (and supervisory)
powers personally all the time. He may delegate some of his
powers to the Cabinet members except when he is
required by the Constitution to act in person or the
exigencies of the situation demand that he acts
personally.[17]
In Buklod ng Kawaning EIIB v. Zamora,[18] this Court upheld
the continuing authority of the President to carry out the
reorganization in any branch or agency of the executive
department. Such authority includes the creation,
alteration or abolition of public offices.[19] The Chief
Executives authority to reorganize the National
Government finds basis in Book III, Section 20 of E.O. No.
292, otherwise known as the Administrative Code of
1987, viz:
Section 20. Residual Powers. Unless Congress provides
otherwise, the President shall exercise such other powers and
functions vested in the President which are provided for under
the laws and which are not specifically enumerated above or
which are not delegated by the President in accordance with
law.
Further, in Larin v. Executive Secretary,[20] this Court had
occasion to rule:
This provision speaks of such other powers vested in the
President under the law. What law then gives him the power to
reorganize? It is Presidential Decree No. 1772 which
FINALS CONSTITUTION I ACJUCO 58
amended Presidential Decree No. 1416. These decrees
expressly grant the President of the Philippines the
continuing authority to reorganize the national
government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions,
services and activities and to standardize salaries and
materials. The validity of these two decrees is unquestionable.
The 1987 Constitution clearly provides that all laws, decrees,
executive orders, proclamations, letters of instructions and
other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or
revoked. So far, there is yet no law amending or repealing said
decrees.
Applying the doctrine of qualified political agency, the
power of the President to reorganize the National Government
may validly be delegated to his cabinet members
exercising control over a particular executive
department. Thus, in DOTC Secretary v. Mabalot,[21] we held
that the President through his duly constituted political agent
and alter ego, the DOTC Secretary may legally and validly
decree the reorganization of the Department, particularly the
establishment of DOTC-CAR as the LTFRB Regional Office at
the Cordillera Administrative Region, with the concomitant
transfer and performance of public functions and
responsibilities appurtenant to a regional office of the LTFRB.
Similarly, in the case at bar, the DENR Secretary can validly
reorganize the DENR by ordering the transfer of the DENR
XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. The exercise of this authority by the
DENR Secretary, as an alter ego, is presumed to be the
acts of the President for the latter had not expressly
repudiated the same.
The trial court should have taken judicial notice of R.A. No.
6734, as implemented by E.O. No. 429, as legal basis of the
Presidents power to reorganize the executive department,
specifically those administrative regions which did not vote for
their inclusion in the ARMM. It is axiomatic that a court has the
mandate to apply relevant statutes and jurisprudence in
determining whether the allegations in a complaint establish a
cause of action. While it focuses on the complaint, a court
clearly cannot disregard decisions material to the proper
appreciation of the questions before it. [22] In resolving the
motion to dismiss, the trial court should have taken cognizance
of the official acts of the legislative, executive, and judicial
departments because they are proper subjects of mandatory
judicial notice as provided by Section 1 of Rule 129 of the
Rules of Court, to wit:
A court shall take judicial notice, without the introduction of
evidence, of the existence and territorial extent of states, their
political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and
history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the
laws of nature, the measure of time, and the geographical
divisions. (Emphasis supplied)
Article XIX, Section 13 of R.A. No. 6734 provides:
SECTION 13. The creation of the Autonomous Region in
Muslim Mindanao shall take effect when approved by a
majority of the votes cast by the constituent units provided in
paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite
which shall be held not earlier than ninety (90) days or later
than one hundred twenty (120) days after the approval of this
Act: Provided, That only the provinces and cities voting
favorably in such plebiscite shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and
cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative
regions: Provided, however, that the President may, by
administrative determination, merge the existing regions.
Pursuant to the authority granted by the aforequoted provision,
then President Corazon C. Aquino issued on October 12, 1990
E.O. 429, Providing for the Reorganization of the
Administrative Regions in Mindanao. Section 4 thereof
provides:
SECTION 4. REGION XII, to be known as CENTRAL
MINDANAO, shall include the following provinces and cities:
Provinces
Sultan Kudarat
Cotabato
South Cotabato
Cities
Cotabato
General Santos
The Municipality of Koronadal (Marinduque) in South
Cotabato shall serve as the regional center.
In Chiongbian v. Orbos, this Court stressed the rule that the
power of the President to reorganize the administrative
regions carries with it the power to determine the regional
centers. In identifying the regional centers, the President
purposely intended the effective delivery of the field
services of government agencies.[23] The same intention
can be gleaned from the preamble of the assailed DAO-99-14
which the DENR sought to achieve, that is, to improve the
efficiency and effectiveness of the DENR in delivering its
services.
It may be true that the transfer of the offices may not be timely
considering that: (1) there are no buildings yet to house the
regional offices in Koronadal, (2) the transfer falls on the month
of Ramadan, (3) the children of the affected employees are
already enrolled in schools in Cotabato City, (4) the Regional
Development Council was not consulted, and (5) the
Sangguniang Panglungsond, through a resolution, requested
the DENR Secretary to reconsider the orders. However, these
concern issues addressed to the wisdom of the transfer rather
than to its legality. It is basic in our form of government that the
judiciary cannot inquire into the wisdom or expediency of the
acts of the executive or the legislative department, [24] for each
department is supreme and independent of the others, and
each is devoid of authority not only to encroach upon the
powers or field of action assigned to any of the other
department, but also to inquire into or pass upon the
advisability or wisdom of the acts performed, measures taken
or decisions made by the other departments. [25]
The Supreme Court should not be thought of as having been
tasked with the awesome responsibility of overseeing the
entire bureaucracy. Unless there is a clear showing of
constitutional infirmity or grave abuse of discretion amounting
to lack or excess of jurisdiction, the Courts exercise of the
judicial power, pervasive and limitless it may seem to be, still
must succumb to the paramount doctrine of separation of
powers.[26] After a careful review of the records of the case, we
FINALS CONSTITUTION I ACJUCO 59

find that this jurisprudential element of abuse of discretion has

not been shown to exist.

WHEREFORE, in view of the foregoing, the petition for

review is GRANTED. The resolutions of the Court of Appeals
in CA-G.R. SP No. 58896 dated May 31, 2000 and August 20,
2001, as well as the decision dated January 14, 2000 of the
Regional Trial Court of Cotabato City, Branch 15, in Civil Case
No 389, are REVERSED and SET ASIDE. The permanent
injunction, which enjoined the petitioner from enforcing the
Memorandum Order of the DENR XII Regional Executive
Director, is LIFTED.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 60
G.R. No. 109406. September 11, 1998
BLAQUERA VS ALCALA
DECISION
PURISIMA, J.:
These are cases for certiorari and prohibition, challenging the
constitutionality and validity of Administrative Order Nos. 29
and 268 on various grounds.
The facts in G.R. Nos. 109406, 110642, 111494, and 112056
are undisputed, to wit:
Petitioners are officials and employees of several government
departments and agencies who were paid incentive benefits
for the year 1992, pursuant to Executive Order No.
292[1] (EO 292), otherwise known as the Administrative Code
of 1987, and the Omnibus Rules Implementing Book V[2]of
EO 292. On January 19, 1993, then President Fidel V.
Ramos (President Ramos) issued Administrative Order No.
29 (AO 29) authorizing the grant of productivity incentive
benefits for the year 1992 in the maximum amount
of P1,000.00[3] and reiterating the prohibition[4] under
Section 7[5]of Administrative Order No. 268 (AO
268), enjoining the grant of productivity incentive benefits
without prior approval of the President. Section 4 of AO 29
directed [a]ll departments, offices and agencies which
authorized payment of CY 1992 Productivity Incentive Bonus
in excess of the amount authorized under Section 1 hereof
[are hereby directed] to immediately cause the
return/refund of the excess within a period of six months to
commence fifteen (15) days after the issuance of this Order. In
compliance therewith, the heads of the departments or
agencies of the government concerned, who are the herein
respondents, caused the deduction from petitioners salaries or
allowances of the amounts needed to cover the alleged
overpayments. To prevent the respondents from making
further deductions from their salaries or allowances, the
petitioners have come before this Court to seek relief.
In G.R. No. 119597, the facts are different but the petition
poses a common issue with the other consolidated cases. The
petitioner, Association of Dedicated Employees of the
Philippine Tourism Authority (ADEPT), is an association of
employees of the Philippine Tourism Authority (PTA) who
were granted productivity incentive bonus for calendar year
1992 pursuant to Republic Act No. 6971 (RA
6971), otherwise known as the Productivity Incentives Act
of 1990. Subject bonus was, however, disallowed by the
Corporate Auditor on the ground that it was prohibited
under Administrative Order No. 29 dated January 19,
1993.[6] The disallowance of the bonus in question was finally
brought on appeal to the Commission on Audit (COA) which
denied the appeal in its Decision[7]of March 6, 1995,
ratiocinating, thus:
xxx Firstly, the provisions of RA #6971 insofar as the
coverage is concerned, refer to business enterprises
including government owned and/or controlled corporations
performing proprietary functions.
Section 1a of the Supplemental Rules Implementing RA
#6971 classified such coverage as:
All business enterprises, with or without existing duly certified
labor organizations, including government owned and/or
controlled corporations performing proprietary functions which
are established solely for business or profit and accordingly
excluding those created, maintained or acquired in pursuance
of a policy of the State enunciated in the Constitution, or by law
and those whose officers and employees are covered by the
Civil Service. (underscoring supplied)
The PTrA is a GOCC created in pursuance of a policy of the
State. Section 9 of Presidential Decree No. 189 states that
to implement the policies and program of the Department
(Dept. of Tourism), there is hereby created a Philippine
Tourism Authority, xxx. Likewise, Section 21 of the same
decree provides that all officials and employees of the
Authority, xxx, shall be subject to Civil Service Law, rules and
regulations, and the coverage of the Wage and Position
Classification Office.
Furthermore, although Supplemental Rules and Regulations
implementing R.A. #6971 was issued only on December 27,
1991, the law itself is clear that it pertains to private business
enterprises whose employees are covered by the Labor Code
of the Philippines, as mentioned in the following provisions:
Section 5. Labor Management Committee. xxx that at the
request of any party to the negotiation, the National Wages and
Productivity Commission of the Department of Labor and
Employment shall provide the necessary studies, xxx.
Section 8. Notification. - A business enterprise which adopts
a productivity incentive program shall submit copies of the
same to the National Wages and Productivity Commission and
to the Bureau of Internal Revenue for their information and
record.
Section 9. Disputes and Grievances. - Whenever disputes,
grievances, or other matters arise from the interpretation or
implementation of the productivity incentive program, xxx may
seek the assistance of the National Conciliation and Mediation
Board of the Department of Labor and Employment for such
purpose. xxx
Therefore, considering the foregoing, the PTrA is within the
exclusion provision of the Implementing Rules of RA #6971
and so, it (PTrA) does not fall within its coverage as being
entitled to the productivity incentive bonus under RA #6971.
Secondly, Administrative Order No. 29 which is the basis for
the grant of the productivity incentive bonus/benefits for CY
1992 also expressly provides prohibiting payments of
similar benefits in future years unless duly authorized by the
President.
Thirdly, the disallowance of the Auditor, PTrA has already
been resolved when this Commission circularized thru COA
Memorandum #92-758 dated April 3, 1992 the Supplemental
to Rules Implementing RA 6971 otherwise known as the
Productivity Incentives Act of 1990. xxx
Lastly, considering the title of RA #6971, i.e. An Act to
encourage productivity and maintain industrial peace by
providing incentives to both labor and capital, and its
implementing rules and regulations prepared by the
Department of Labor and Employment and the Department
of Finance, this Office concludes that said law/regulation
pertains to agencies in the private sector whose
employees are covered by the Labor Code.
With the denial of its appeal, petitioner found its way here via
the petition in G.R. No. 119597, to seek relief from the
aforesaid decision of COA.
We will first resolve the issue on the applicability of RA 6971 to
petitioner ADEPT in G.R. No. 119597 before passing upon the
FINALS CONSTITUTION I ACJUCO 61
constitutionality or validity of Administrative Orders 29 and
268.
Section 3 of RA 6971, reads:
SECTION 3. Coverage. This Act shall apply to all business
enterprises with or without existing and duly recognized or
certified labor organizations, including government-owned and
controlled corporations performing proprietary functions. It
shall cover all employees and workers including casual,
regular, supervisory and managerial
employees. (Underscoring ours)
Pursuant to Section 10[8] of RA 6971, the Secretary of Labor
and Secretary of Finance issued Supplemental Rules to
implement the said law, as follows:
Section 1. - Paragraph (a) Section 1, Rule II of the Rules
Implementing RA 6971, shall be amended to read as follows:
Coverage. These Rules shall apply to:
(a) All business enterprises with or without existing duly
certified labor organizations, including government-owned and
controlled corporations performing proprietary functions which
are established solely for business or profit or gain and
accordingly excluding those created, maintained or
acquired in pursuance of a policy of the state, enunciated
in the Constitution or by law, and those whose officers and
employees are covered by the Civil Service. (Underscoring
ours)
xxx
Petitioner contends that the PTA is a government-owned and
controlled corporation performing proprietary function, and
therefore the Secretary of Labor and Employment and
Secretary of Finance exceeded their authority in issuing the
aforestated Supplemental Rules Implementing RA 6971.
Government-owned and controlled corporations may perform
governmental or proprietary functions or both, depending on
the purpose for which they have been created. If the purpose
is to obtain special corporate benefits or earn pecuniary
profit, the function is proprietary. If it is in the interest of
health, safety and for the advancement of public good and
welfare, affecting the public in general, the function is
governmental.[9] Powers classified as proprietary are those
intended for private advantage and benefit. [10]
The PTA was established by Presidential Decree No. 189, as
amended by Presidential Decree No. 564 (PD 564).
[11]
Its general purposes are:
1. To implement the policies and programs of the
Department of Tourism (Department);
2. To develop tourist zones;
3. To assist private enterprises in undertaking tourism projects;
4. To operate and maintain tourist facilities;
5. To assure land availability for private investors in hotels and
other tourist facilities;
6. To coordinate all tourism project plans and operations.
Its specific functions and powers [12] are:
1. Planning and development of tourism projects
a. To assist the Department make a comprehensive survey of
the physical and natural tourism resources of the Philippines;
to establish the order of priority for development of said areas;
to recommend to the President the proclamation of a tourist
zone; and to define and fix the boundaries of the zone;
b. To formulate a development plan for each zone;
c. To submit to the President through the National Economic
and Development Authority for review and approval all
development plans before the same are enforced or
implemented;
d. To submit to the President an Annual Progress Report;
e. To assist the Department to determine the additional
capacity requirements for various tourist facilities and services;
to prepare a ten-year Tourism Priorities Plan; to update
annually the ten year Tourism Priorities Plan.
f. To gather, collate and analyze statistical data and other
pertinent information for the effective implementation of PD
564.
2. Acquisition and disposition of lands and other assets
for tourist zone purposes
a. To acquire possession and ownership of all lands
transferred to it from other government corporations and
institutions and any land having tourism potential and
earmarked in the Tourism Priorities Plans for intensive
development into a tourist zone or as a part thereof, subject to
the approval of the President.
b. To acquire by purchase, by negotiation or by condemnation
proceedings any private land within and without the tourist
zones for any of the following reasons: (a) consolidation of
lands for tourist zone development purposes, (b) prevention of
land speculation in areas declared as tourist zones, (c)
acquisition of right of way to the zones, (d) protection of water
shed areas and natural assets with tourism value, and (e) for
any other purpose expressly authorized under PD 564.
c. For the purpose of providing land acquisition assistance to
registered tourism enterprises, to sell, subdivide, resell, lease,
sublease, rent out, or otherwise, to said registered tourism
enterprises under sufficiently soft terms for use specifically in
the development of hotels, recreational facilities, and other
tourist services.
d. To develop and/or subdivide any land in its name or
undertake condominium projects thereon, and sell subdivision
lots or condominium units to private persons for investment
purposes.
e. To take over or transfer to a registered tourism enterprise in
accordance with law any lease on foreshore areas within a
tourist zone or adjacent thereto, in cases said areas are not
being utilized in accordance with the PTAs approved zone
development plan and wherein the lessee concerned does not
agree to conform accordingly.
f. To arrange for the reclamation of any land adjacent to or
adjoining a tourist zone in coordination with appropriate
government agencies.
3. Infrastructure development for tourist zone purposes
a. To contract, supervise and pay for infrastructure works and
civil works within a tourist zone owned and operated by the
PTA.
FINALS CONSTITUTION I ACJUCO 62
b. To coordinate with appropriate government agencies the
development of infrastructure requirements supporting a
tourist zone.
c. To take water from any public stream, river, creek, lake,
spring, or waterfall and to alter, straighten, obstruct or increase
the flow of water in streams.
4. Zone administration and control
a. To formulate and implement zoning regulations.
b. To determine and regulate the enterprises to be established
within a tourist zone.
c. To ensure, through the proper authorities concerned, the
ecological preservation, maintenance and/or rehabilitation of
the common and the public areas within a tourist zone and the
environment thereof.
d. To identify and recommend to the President the
preservation and/or restoration of national monuments or
preserves; to arrange for the preservation and/or restoration of
the same with appropriate government agencies or with the
private sector or with the owners themselves of said tourist
attractions; and to identify and recommend to the appropriate
authorities concerned the declaration of tourist areas and
attractions as national monuments and preserves.
5. Project and investment promotions
a. To identify, develop, invest in, own, manage and operate
such projects as it may deem to be vital for recreation and rest
but not sufficiently attractive economically for private
investment.
b. To construct hotel buildings and other tourist facilities within
a tourist zone and in turn lease such facilities to registered
tourism enterprises for operation, management and
maintenance.
c. To organize, finance, invest in, manage and operate wholly-
owned subsidiary corporations.
6. Direct assistance to registered enterprises
a. To administer the tax and other incentives granted to
registered enterprises.
b. To evaluate, approve and register or reject any and all
tourism projects or enterprises established within the tourist
zones.
c. To grant medium and long-term loans and/or re-lend any
funds borrowed for the purpose to duly qualified registered
tourism enterprises.
d. To guarantee local and foreign borrowings of registered
enterprises.
e. To provide equity investments in the form of cash and/or
land.
f. To extend technical, management and financial assistance
to tourism projects.
g. To identify, contact and assist in negotiations of suitable
partners for both local and foreign investors interested in
investment or participation in the tourism industry.
h. To assist registered enterprises and prospective investors to
have their papers processed with dispatch by government
offices.
7. Other powers and functions
a. To engage or retain the services of financial, management,
legal, technical, and/or project consultants from the private or
government sector.
b. To have the power to succeed by its corporate name.
c. To adopt, alter, and use a corporate seal.
d. To sue and be sued under its corporate name.
e. To enter into any contracts of any kind and description.
f. To own or possess personal and/or real property.
g. To make, adopt and enforce rules and regulations to
execute its powers, duties and functions.
h. To purchase, hold, and alienate shares of stock or bonds of
any corporation.
I. To collect fees or charges as may be imposed under PD 564.
j. To contract indebtedness and issue bonds.
k. To fix and collect rentals for the lease, use or occupancy of
lands, buildings, or other property owned or administered by
PTA.
l. To do any and all acts and things necessary to carry out the
purposes for which the PTA is created.
Categorized in light of the foregoing provisions of law in point,
PTAs governmental functions include the first,
third, fourth, and sixth of the aforesaid general
purposes. The second [13] and fifth general purposes fall under
its proprietary functions.
With respect to PTAs specific functions and powers, the
first and fourth are governmental in nature while the fifth
specific functions and powers are proprietary in
character. The second, third, sixth, and seventh specific
functions and powers can be considered partly-governmental
and partly-proprietary, considering that 2(a), 2(b), 2(c), 2(d),
2(e), 3(a), 6(c), 6(d), 6(e), 7(h), 7(j), and 7(k) are proprietary
functions while 2(f), 3(b), 3(c), 6(a), 6(b), 6(f), 6(g), 6(h), 7(a),
7(b), 7(c), 7(d), 7(f), 7(g), and 7(l) are governmental
functions. The specific functions and powers treated in 7(e)
and 7(i) may be classified either as proprietary or
governmental, depending on the circumstances under which
they are exercised or performed.
The aforecited powers and functions of PTA are
predominantly governmental, principally geared towards the
development and promotion of tourism in the scenic Philippine
archipelago. But it is irrefutable that PTA also performs
proprietary functions, as envisaged by its charter.
Reliance on the above analysis of the functions and powers of
PTA does not suffice for the determination of whether or not it
is within the coverage of RA 6971. For us to resolve the issues
raised here solely on the basis of the classification of PTAs
powers and functions may lead to the rendition of judgment
repugnant to the legislative intent and to established doctrines,
as well, such as on the prohibition against government workers
to strike.[14] Under RA 6971, the workers have the right to
strike.
To ascertain whether PTA is within the ambit of RA 6971,
there is need to find out the legislative intent, and to refer to
other provisions of RA 6971 and other pertinent laws, that may
FINALS CONSTITUTION I ACJUCO 63
aid the Court in ruling on the right of officials and employees of
PTA to receive bonuses under RA 6971.
Petitioner cites an entry in the journal of the House of
Representatives to buttress its submission that PTA is within
the coverage of RA 6971, to wit:
Chairman Veloso: The intent of including government-owned
and controlled corporations within the coverage of the Act is
the recognition of the principle that when government goes into
business, it (divests) itself of its immunity from suit and goes
down to the level of ordinary private enterprises and subjects
itself to the ordinary laws of the land just like ordinary private
enterprises. Now, when people work therefore in
government-owned or controlled corporations, it is as if
they are also, just like in the private sector, entitled to all
the benefits of all laws that apply to workers in the private
sector. In my view, even including the right to organize,
bargain.... VELOSO (Bicameral Conference Committee on
Labor and Employment, pp. 15-16)
After a careful study, the Court is of the view, and so holds, that
contrary to petitioners interpretation, the government-owned
and controlled corporations Mr. Chairman Veloso had in mind
were government-owned and controlled corporations
incorporated under the general corporation law. This is so
because only workers in private corporations and
government-owned and controlled corporations,
incorporated under the general corporation law, have the
right to bargain (collectively). Those in government
corporations with special charter, which are subject to Civil
Service Laws, have no right to bargain (collectively), except
where the terms and conditions of employment are not fixed by
law.[15] Their rights and duties are not comparable with those in
the private sector.
Since the terms and conditions of government employment are
fixed by law, government workers cannot use the same
weapons employed by workers in the private sector to secure
concessions from their employers. The principle behind labor
unionism in private industry is that industrial peace cannot be
secured through compulsion by law. Relations between private
employers and their employees rest on an essentially voluntary
basis. Subject to the minimum requirements of wage laws and
other labor and welfare legislation, the terms and conditions of
employment in the unionized private sector are settled through
the process of collective bargaining. In government
employment, however, it is the legislature and, where
properly given delegated power, the administrative heads
of government which fix the terms and conditions of
employment. And this is effected through statutes or
administrative circulars, rules, and regulations, not
through collective bargaining agreements. (Alliance of
Government Workers v. Minister of Labor and Employment,
124 SCRA 1) (italics ours)
Government corporations may be created by special charters
or by incorporation under the general corporation law. Those
created by special charters are governed by the Civil
Service Law while those incorporated under the general
corporation law are governed by the Labor Code.[16]
The legislative intent to place only government-owned and
controlled corporations performing proprietary functions under
the coverage of RA 6971 is gleanable from the other provisions
of the law. For instance, section 2[17] of said law envisions
industrial peace and harmony and to provide
corresponding incentives to both labor and capital; section
4[18] refers to representatives of labor and management;
section 5[19] mentions of collective bargaining agent(s) of the
bargaining unit(s); section 6[20] relates to existing collective
bargaining agreements, and labor and management; section
7[21] speaks of strike or lockout; and section 9[22] purports to
seek the assistance of the National Conciliation and Mediation
Board of the Department of Labor and Employment and
include the name(s) of the voluntary arbitrators or panel of
voluntary arbitrator. All the aforecited provisions of law apply
only to private corporations and government-owned and
controlled corporations organized under the general
corporation law. Only they have collective bargaining agents,
collective bargaining units, collective bargaining agreements,
and the right to strike or lockout.
To repeat, employees of government corporations created
by special charters have neither the right to strike nor the
right to bargain collectively, as defined in the Labor
Code. The case of Social Security System Employees
Association indicates the following remedy of government
workers not allowed to strike or bargain collectively, to wit:
Government employees may, therefore, through their unions
or associations, either petition the Congress for the betterment
of the terms and conditions of employment which are within the
ambit of legislation or negotiate with the appropriate
government agencies for the improvement of those which are
not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor-
Management Council for appropriate action. But employees in
the civil service may not resort to strikes, walkouts and other
temporary work stoppages, like workers in the private sector,
to pressure the Government to accede to their
demands. (supra, footnote 14, p. 698; italics ours)
It is a rule in statutory construction that every part of the statute
must be interpreted with reference to the context, i.e., that
every part of the statute must be considered together with the
other parts, and kept subservient to the general intent of the
whole enactment.[23] The provisions of RA 6971, taken
together, reveal the legislative intent to include
only government-owned and controlled
corporations performing proprietary functions
within its coverage.
Every statute must be construed and harmonized with other
statutes as to form a uniform system of jurisprudence. [24] We
note Section 1, Rule X of the Omnibus Rules Implementing
Book V of EO 292, which reads:
SECTION 1. - Each department or agency of government,
whether national or local, including bureaus and agencies,
state colleges and universities, and government owned and
controlled corporations with original charters, shall establish its
own Department or Agency Employee Suggestions and
Incentives Award System in accordance with these Rules and
shall submit the same to the Commission for
approval. (Underscoring ours)
It is thus evident that PTA, being a government-owned and
controlled corporation with original charter subject to
Civil Service Law, Rules and Regulations,[25] is already
within the scope of an incentives award system under
Section 1, Rule X of the Omnibus Rules Implementing EO
292 issued by the Civil Service
Commission (Commission). Since government-owned and
controlled corporations with original charters do have an
incentive award system, Congress enacted a law that would
address the same concern of officials and employees of
government-owned and controlled corporations incorporated
under the general corporation law.
FINALS CONSTITUTION I ACJUCO 64
All things studiedly considered in proper perspective, the Court
finds no reversible error in the finding by respondent
Commission that PTA is not within the purview of RA 6971. As
regards the promulgation of implementing rules and
regulations, it bears stressing that the power of administrative
officials to promulgate rules in the implementation
of the statute is necessarily limited to what is provided for in
the legislative enactment.[26] In the case under scrutiny, the
Supplementary Rules Implementing RA 6971 issued by the
Secretary of Labor and Employment and the Secretary of
Finance accord with the intendment and provisions of RA
6971. Consequently, not being covered by RA
6971, AO 29 applies to the petitioner.
We now tackle the common issue posited by the consolidated
petitions on the constitutionality of AO 29 and AO 268.
Petitioners contend and argue, that:
I. AO 29 AND AO 268 ARE VIOLATIVE OF THE PROVISIONS
OF EO 292 AND, HENCE, NULL AND VOID.
II. AO 29 AND AO 268 UNLAWFULLY USURP THE
CONSTITUTIONAL AUTHORITY GRANTED SOLELY TO
THE CIVIL SERVICE COMMISSION.
III. THE FORCED REFUND OF INCENTIVE PAY IS AN
UNCONSTITUTIONAL IMPAIRMENT OF A CONTRACTUAL
OBLIGATION.
IV. ASSUMING, FOR THE SAKE OF ARGUMENT ONLY,
THAT THE GRANT OF PRODUCTIVITY INCENTIVE
BENEFITS WAS INVALID, THE SAME SHOULD BE THE
PERSONAL LIABILITY OF OFFICIALS DIRECTLY
RESPONSIBLE THEREFOR IN ACCORDANCE WITH
SECTION 9 OF AO 268.
Issued by the then President Corazon Aquino (President
Aquino) on July 25, 1987 in the exercise of her legislative
powers under the 1987 Constitution, [27] EO 292, or the
Administrative Code of 1987, provided for the
following incentive award system:
Sec. 31. Career and Personnel Development Plans. - Each
department or agency shall prepare a career and personnel
development plan which shall be integrated into a national plan
by the Commission. Such career and personnel development
plans which shall include provisions on merit promotions,
performance evaluation, in-service training, including
overseas and local scholarships and training grants, job
rotation, suggestions and incentive award systems, and
such other provisions for employees health, welfare,
counseling, recreation and similar services.
Sec. 35. Employee Suggestions and Incentive Award
System. - There shall be established a government-wide
employee suggestions and incentive awards system which
shall be administered under such rules, regulations, and
standards as maybe promulgated by the Commission.
In accordance with rules, regulations, and standards
promulgated by the Commission, the President or the head
of each department or agency is authorized to incur
whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the
government who by their suggestions, inventions,
superior accomplishment, and other personal efforts
contribute to the efficiency, economy, or other
improvement of government operations, or who perform
such other extraordinary acts or services in the public
interest in connection with, or in relation to, their official
employment.
Sec. 36. Personnel Relations. - (1) It shall be the concern of
the Commission to provide leadership and assistance in
developing employee relations programs in the department or
agencies.
(2) Every Secretary or head of agency shall take all proper
steps toward the creation of an atmosphere conducive to good
supervisor-employee relations and the improvement of
employee morale.
Pursuant to the provision of Section 12(2), [28] Chapter 3, Book
V of EO 292, the Commission adopted and prescribed the
Omnibus Rules Implementing Book V of EO 292 which, among
others, provide:
Sec. 1. - Each department or agency of government, whether
national or local, including bureaus and agencies, state
colleges and universities, and government owned and
controlled corporations with original charters, shall establish
its own Department or Agency Employee Suggestions and
Incentives Award System in accordance with these Rules
and shall submit the same to the Commission for
approval.
Sec. 2. - The System is designed to encourage creativity,
innovativeness, efficiency, integrity and productivity in the
public service by recognizing and rewarding officials and
employees, individually or in groups, for their suggestions,
inventions, superior accomplishments, and other personal
efforts which contribute to the efficiency, economy, or other
improvement in government operations, or for other
extraordinary acts of services in the public interest.
xxx
Sec. 7. - The incentive awards shall consist of, though not
limited to, the following:
xxx
(c) Productivity Incentive which shall be given to an employee
or group of employees who has exceeded their targets or
has incurred incremental improvement over existing
targets.
On February 21, 1992, President Aquino issued AO 268 which
granted each official and employee of the government the
productivity incentive benefits in a maximum amount
equivalent to thirty percent (30%) of his one (1) month
basic salary but in no case shall such amount be less than
two thousand pesos (P2,000.00),[29] for those who have
rendered at least one year of service as of December 31,
1991.[30]Said AO carried the prohibition, provided in Section 7
thereof, which reads:
SECTION 7. The productivity incentive benefits herein
authorized shall be granted only for Calendar Year
1991. Accordingly, all heads of agencies, including the
governing boards of government-owned or -controlled
corporations and financial institutions, are hereby strictly
prohibited from authorizing/granting productivity incentive
benefits or other allowances of similar nature for Calendar Year
1992 and future years pending the result of a comprehensive
study being undertaken by the Office of the President in
coordination with the Civil Service Commission and the
Department of Budget and Management on the matter.
FINALS CONSTITUTION I ACJUCO 65
The formulation of the necessary implementing guidelines for
Executive Order No. 486 dated 8 November 1991 establishing
a performance-based incentive system for government-owned
or -controlled corporations shall likewise be included in the
comprehensive study referred to in the preceding paragraph.
On January 19, 1993, President Ramos issued AO 29 which
granted productivity incentive benefits to government
employees in the maximum amount of P1,000.00[31] for the
calendar year 1992 but reiterated the proscription under
Section 7 of AO 268, thus:
SECTION 2. The prohibition prescribed under Section 7 of
Administrative Order No. 268 is hereby reiterated. Accordingly,
all heads of government offices/agencies, including
government-owned and/or controlled corporations, as well as
their respective governing boards are hereby enjoined and
prohibited from authorizing/granting Productivity Incentive
Benefits or any and all similar forms of allowances/benefits
without prior approval and authorization via
Administrative Order by the Office of the
President. Henceforth, anyone found violating any of the
mandates in this Order, including all officials/employees and
the COA Auditor-in-Charge of such government office/agency
found to have taken part thereof, shall be accordingly and
severely dealt with in accordance with the applicable
provisions of existing penal laws.
Consequently, all administrative authorizations to grant any
form of allowances/benefits and all forms of additional
compensation usually paid outside of the prescribed basic
salary under R.A. No. 6758, the Salary Standardization Law
that are inconsistent with the legislated policy on the matter or
are not covered by any legislative action are hereby revoked.
The implementation of Executive Order No. 486 dated
November 8, 1991, as amended by Executive Order No. 518
dated May 29, 1992, is hereby deferred until a more
comprehensive and equitable scheme for the grant of the
benefits that can be applied government-wide is formulated by
the Department of Budget and Management.
Petitioners theorize that AO 29 and AO 268 violate EO 292 and
since the latter is a law, it prevails over executive
issuances. Petitioners likewise assert that AO 29 and AO 268
encroach upon the constitutional authority of the Civil Service
Commission to adopt measures to strengthen the merit and
rewards system and to promulgate rules, regulations and
standards governing the incentive awards system of the civil
service.
The Court is not impressed with petitioners’ submission. AO
29 and AO 268 were issued in the valid exercise of
presidential control over the executive departments.
In establishing a Civil Service Commission, the 1987
Constitution delineated its function, as follows:
The Civil Service Commission, as the central personnel
agency of the Government, shall establish a career service and
adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil
service. It shall strengthen the merit and rewards system,
integrate all human resources development programs for all
levels and ranks, and institutionalize a management climate
conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel
programs. (Section 3, Article IX, B, 1987 Constitution)
The Commission handles personnel matters of the
government. As the central personnel agency of the
Government, it is tasked to formulate and establish a system
of incentives and rewards for officials and employees in the
public sector, alike.
The functions of the Commission have been decentralized to
the different departments, offices, and agencies of the
government --
SEC. 1. Declaration of Policy. -- The State shall insure and
promote the Constitutional mandate that appointments in the
Civil Service shall be made only according to merit and fitness;
that the Civil Service Commission, as the central personnel
agency of the Government shall establish a career service,
adopt measures to promote morale, efficiency, integrity,
responsiveness, and courtesy in the civil service, strengthen
the merit and rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive to public
accountability; that public office is a public trust and public
officers and employees must at all times be accountable to the
people; and that personnel functions shall be decentralized,
delegating the corresponding authority to the departments,
offices and agencies where such functions can be effectively
performed. (Section 1, Chapter I, Subtitle A, Title I, EO 292)
(underscoring ours)
Specifically, implementation of the Employee Suggestions and
Incentive Award System has been decentralized to the
President or to the head of each department or agency --
Sec. 35. Employee Suggestions and Incentive Award System.
- There shall be established a government-wide employee
suggestions and incentive awards system which shall be
administered under such rules, regulations, and standards as
maybe promulgated by the Commission.
In accordance with rules, regulations, and standards
promulgated by the Commission, the President or the head of
each department or agency is authorized to incur whatever
necessary expenses involved in the honorary recognition of
subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and
other personal efforts contribute to the efficiency, economy, or
other improvement of government operations, or who perform
such other extraordinary acts or services in the public interest
in connection with, or in relation to, their official
employment. (EO 292) (underscoring ours)
The President is the head of the government. Governmental
power and authority are exercised and implemented through
him. His power includes the control over executive
departments --
The president shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed. (Section 17, Article VII, 1987
Constitution)
Control means the power of an officer to alter or modify or set
aside what a subordinate officer had done in the performance
of his duties and to substitute the judgment of the former for
that of the latter.[32] It has been held that [t]he President can,
by virtue of his power of control, review, modify, alter or nullify
any action, or decision, of his subordinate in the executive
departments, bureaus, or offices under him. He can exercise
this power motu proprio without need of any appeal from any
party.[33]
When the President issued AO 29 limiting the amount of
incentive benefits, enjoining heads of government
agencies from granting incentive benefits without prior
FINALS CONSTITUTION I ACJUCO 66
approval from him, and directing the refund of the excess
over the prescribed amount, the President was just
exercising his power of control over executive
departments. This is decisively clear from the WHEREAS
CLAUSES of AO 268 and AO 29, to wit:
ADMINISTRATIVE ORDER NO. 268
xxx
WHEREAS, the productivity incentive benefits granted by the
different agencies are of varying amounts, causing
dissension/demoralization on the part of those who had
received less and those who have not yet received any such
benefit, thereby defeating the purpose for which the same
should be granted; and
WHEREAS, there exists the need to regulate the grant of the
productivity incentive benefits or other similar allowances in
conformity with the policy on standardization of compensation
pursuant to Republic Act No. 6758;
x x x.
ADMINISTRATIVE ORDER NO. 29
xxx
WHEREAS, the faithful implementation of statutes,
including the Administrative Code of 1987 and all laws
governing all forms of additional compensation and
personnel benefits is a Constitutional prerogative vested
in the President of the Philippines under Section 17,
Article VII of the 1987 Constitution;
WHEREAS, the Constitutional prerogative includes the
determination of the rates, the timing and schedule of
payment, and final authority to commit limited resources
of government for the payment of personnel incentives,
cash awards, productivity bonus, and other forms of
additional compensation and fringe benefits;
WHEREAS, some government agencies have overlooked
said Constitutional prerogative and have unilaterally
granted to their respective officials and employees
incentive awards;
WHEREAS, the Office of the President issued Administrative
Order No. 268, dated February 21, 1992, strictly prohibiting the
grant of Productivity Incentive Bonus or other allowances of
similar nature for Calendar Year 1992 and future years pending
the issuance of the requisite authorization by the President;
WHEREAS, notwithstanding said prohibition some
government offices/agencies and government-owned and/or
controlled corporations and financial institutions have granted
productivity incentive benefits in varying nomenclature and
amounts without the proper authorization/coordination with the
Office of the President;
WHEREAS, the unilateral and uncoordinated grant of
productivity incentive benefits gave rise to discontentment,
dissatisfaction and demoralization among government
personnel who have received less or have not received at all
such benefits;
x x x.
The President issued subject Administrative Orders to
regulate the grant of productivity incentive benefits and to
prevent discontentment, dissatisfaction and
demoralization among government personnel by
committing limited resources of government for the equal
payment of incentives and awards. The President was
only exercising his power of control by modifying the acts
of the respondents who granted incentive benefits to their
employees without appropriate clearance from the Office
of the President, thereby resulting in the uneven
distribution of government resources. In the view of the
President, respondents did a mistake which had to be
corrected. In so acting, the President exercised a
constitutionally-protected prerogative --
The Presidents duty to execute the law is of constitutional
origin. So, too, is his control of all executive departments. Thus
it is, that department heads are men of his confidence. His is
the power to appoint them; his, too, is the privilege to dismiss
them at pleasure. Naturally, he controls and directs their
acts. Implicit then is his authority to go over, confirm, modify or
reverse the action taken by his department secretaries. In this
context, it may not be said that the President cannot rule on
the correctness of a decision of a department
secretary. (Lacson-Magallanes Co., Inc. v. Pao, 21 SCRA 898)
Neither can it be said that the President encroached upon the
authority of the Commission on Civil Service to grant benefits
to government personnel. AO 29 and AO 268 did not revoke
the privilege of employees to receive incentive benefits. The
same merely regulated the grant and amount thereof.
Sound management and effective utilization of financial
resources of government are basically executive
functions,[34] not the Commissions. Implicit is this recognition in
EO 292, which states:
Sec. 35. Employee Suggestions and Incentive Award System.
- There shall be established a government-wide employee
suggestions and incentive awards system which shall be
administered under such rules, regulations, and standards as
maybe promulgated by the Commission.
In accordance with rules, regulations, and standards
promulgated by the Commission, the President or the head of
each department or agency is authorized to incur whatever
necessary expenses involved in the honorary recognition of
subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and
other personal efforts contribute to the efficiency, economy, or
other improvement of government operations, or who perform
such other extraordinary acts or services in the public interest
in connection with, or in relation to, their official
employment.(Chapter 5, Subtitle A, Book V) (underscoring
ours)
Conformably, it is the President or the head of each
department or agency who is authorized to incur the
necessary expenses involved in the honorary recognition
of subordinate officers and employees of the
government. It is not the duty of the Commission to fix the
amount of the incentives. Such function belongs to the
President or his duly empowered alter ego.
Anent petitioners contention that the forcible refund of
incentive benefits is an unconstitutional impairment of a
contractual obligation, suffice it to state that [n]ot all contracts
entered into by the government will operate as a waiver of its
non-suability; distinction must be made between its sovereign
and proprietary acts (United States of America v. Ruiz, 136
SCRA 487).[35] The acts involved in this case are
governmental. Besides, the Court is in agreement with the
Solicitor General that the incentive pay or benefit is in the
FINALS CONSTITUTION I ACJUCO 67

nature of a bonus which is not a demandable or enforceable
obligation.
It is understood that the Judiciary, Civil Service Commission,
Commission on Audit, Commission on Elections, and Office of
the Ombudsman, which enjoy fiscal autonomy, are not covered
by the amount fixed by the President. As explained in Bengzon
vs. Drilon (208 SCRA 133):
WHEREFORE, the Petitions in G.R. Nos. 109406, 110642,
111494, and 112056 are hereby DISMISSED, and as above
ratiocinated, further deductions from the salaries and
allowances of petitioners are hereby ENJOINED.
In G.R. No. 119597, the assailed Decision of respondent
Commission on Audit is AFFIRMED. No pronouncement as to
costs.

As envisioned in the Constitution, the fiscal autonomy SO ORDERED.

enjoyed by the Judiciary, the Civil Service Commission,
the Commission on Audit, the Commission on Elections,
and the Office of the Ombudsman contemplates a
guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs
require. It recognizes the power and authority to levy, assess
and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay
plans of the government and allocate and disburse such sums
as may be provided by law or prescribed by them in the course
of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the

Supreme Court says it needs 100 typewriters but DBM rules
we need only 10 typewriters and sends its recommendations
to Congress without even informing us, the autonomy given by
the Constitution becomes an empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the

Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the
Constitution but especially as regards the Supreme Court, of
the independence and separation of powers upon which the
entire fabric of our constitutional system is based. In the
interest of comity and cooperation, the Supreme Court,
Constitutional Commissions, and the Ombudsman have so far
limited their objections to constant reminders. We now agree
with the petitioners that this grant of autonomy should cease to
be a meaningless provision.

Untenable is petitioners contention that the herein respondents

be held personally liable for the refund in question. Absent a
showing of bad faith or malice, public officers are not
personally liable for damages resulting from the performance
of official duties.[36]

Every public official is entitled to the presumption of good faith

in the discharge of official duties.[37] Absent any showing of bad
faith or malice, there is likewise a presumption of regularity in
the performance of official duties.[38]

In upholding the constitutionality of AO 268 and AO 29, the

Court reiterates the well-entrenched doctrine that in
interpreting statutes, that which will avoid a finding of
unconstitutionality is to be preferred.[39]

Considering, however, that all the parties here acted in good

faith, we cannot countenance the refund of subject incentive
benefits for the year 1992, which amounts the petitioners have
already received.Indeed, no indicia of bad faith can be
detected under the attendant facts and circumstances. The
officials and chiefs of offices concerned disbursed such
incentive benefits in the honest belief that the amounts given
were due to the recipients and the latter accepted the same
with gratitude, confident that they richly deserve such benefits.
FINALS CONSTITUTION I ACJUCO 68
[G.R. No. 131367. August 31, 2000]
HUTCHISON PORTS PHILIPPINES LIMITED, petitioner,
vs. SUBIC BAY METROPOLITAN AUTHORITY,
INTERNATIONAL CONTAINER TERMINAL SERVICES
INC., ROYAL PORT SERVICES INC. and the EXECUTIVE
SECRETARY, respondents.
DECISION
YNARES-SANTIAGO, J.:
On February 12, 1996, the Subic Bay Metropolitan
Authority (or SBMA) advertised in leading national daily
newspapers and in one international publication, [1] an invitation
offering to the private sector the opportunity to develop and
operate a modern marine container terminal within the
Subic Bay Freeport Zone. Out of seven bidders who
responded to the published invitation, three were declared by
the SBMA as qualified bidders after passing the pre-
qualification evaluation conducted by the SBMAs Technical
Evaluation Committee (or SBMA-TEC).These are: (1)
International Container Terminal Services, Inc. (or ICTSI); (2)
a consortium consisting of Royal Port Services, Inc. and HPC
Hamburg Port Consulting GMBH (or RPSI); and (3) Hutchison
Ports Philippines Limited (or HPPL), representing a consortium
composed of HPPL, Guoco Holdings (Phils.), Inc. and Unicol
Management Services, Inc. All three qualified bidders were
required to submit their respective formal bid package on or
before July 1, 1996 by the SBMAs Pre-qualification, Bids and
Awards Committee (or SBMA-PBAC).
Thereafter, the services of three (3) international
consultants[2] recommended by the World Bank for their
expertise were hired by SBMA to evaluate the business plans
submitted by each of the bidders, and to ensure that there
would be a transparent and comprehensive review of the
submitted bids. The SBMA also hired the firm of Davis,
Langdon and Seah Philippines, Inc. to assist in the evaluation
of the bids and in the negotiation process after the winning
bidder is chosen. All the consultants, after such review and
evaluation unanimously concluded that HPPLs Business Plan
was far superior to that of the two other bidders. [3]
However, even before the sealed envelopes containing
the bidders proposed royalty fees could be opened at the
appointed time and place, RPSI formally protested that
ICTSI is legally barred from operating a second port in the
Philippines based on Executive Order No. 212 and
Department of Transportation and Communication
(DOTC) Order 95-863. RPSI thus requested that the financial
bid of ICTSI should be set aside.[4]
Nevertheless, the opening of the sealed financial bids
proceeded under advisement relative to the protest signified by
RPSI. The financial bids, more particularly the proposed
royalty fee of each bidder, was as follows:
ICTSI ------------US$57.80 TEU
HPPL ------------US$20.50 TEU
RPSI -------------US$15.08 TEU
The SBMA-PBAC decided to suspend the announcement of
the winning bid, however, and instead gave ICTSI seven (7)
days within which to respond to the letter-protest lodged by
RPSI.The HPPL joined in RPSIs protest, stating that ICTSI
should be disqualified because it was already operating
the Manila International Container Port (or MICP), which
would give rise to inevitable conflict of interest between the
MICP and the Subic Bay Container Terminal facility.[5]
On August 15, 1996, the SBMA-PBAC issued a
resolution rejecting the bid of ICTSI because said bid does
not comply with the requirements of the tender documents and
the laws of the Philippines. The said resolution also declared
that:
RESOLVED FURTHER, that the winning bid be awarded to
HUTCHISON PORTS PHILIPPINES LIMITED (HPPL) and
that negotiations commence immediately with
HPPL (HUTCHISON) with a view to concluding an acceptable
agreement within 45 days of this date failing which negotiations
with RPSI (ROYAL) will commence with a view to concluding
an acceptable agreement within 45 days thereafter failing
which there will be declared a failure of bids. [6] (Underscoring
supplied)
The following day, ICTSI filed a letter-appeal with
SBMAs Board of Directors requesting the nullification and
reversal of the above-quoted resolution rejecting ICTSIs
bid while awarding the same to HPPL. But even before the
SBMA Board could act on the appeal, ICTSI filed a similar
appeal before the Office of the President.[7] On August 30,
1996, then Chief Presidential Legal Counsel (CPLC) Renato
L. Cayetano submitted a memorandum to then President Fidel
V. Ramos, containing the following recommendations:
We therefore suggest that the President direct SBMA
Chairman Gordon to consider option number 4 that is to re-
evaluate the financial bids submitted by the parties, taking
into consideration all the following factors:
1. Reinstate ICTSIs bid;
2. Disregard all arguments relating to monopoly;
3. The re-evaluation must be limited to the parties’
financial bids.
3.1 Considering that the parties business have been
accepted (passed), strictly follow the criteria for bid
evaluation provided for in pars. (c) and (d), Part B (1)
of the Tender Document.
4. In the re-evaluation, the COA should actively participate to
determine which of the financial bids is more advantageous.
5. In addition, all the parties should be given ample opportunity
to elucidate or clarify the components/justification for their
respective financial bids in order to ensure fair play and
transparency in the proceedings.
6. The Presidents authority to review the final award shall
remain.[8] (Underscoring supplied)
The recommendation of CPLC Cayetano was
approved by President Ramos, and a copy of President
Ramos handwritten approval was sent to the SBMA Board of
Directors.Accordingly, the SBMA Board, with the concurrence
of representatives of the Commission on Audit, agreed to focus
the reevaluation of the bids in accordance with the evaluation
criteria and the detailed components contained in the Tender
Document, including all relevant information gleaned from the
bidding documents, as well as the reports of the three
international experts and the consultancy firm hired by the
SBMA.
On September 19, 1996, the SBMA Board issued a
Resolution, declaring:
FINALS CONSTITUTION I ACJUCO 69
NOW, THEREFORE, IT IS HEREBY RESOLVED that the bid
that conforms to the Invitation to Tender, that has a realistic
Business Plan offering the greatest financial return to SBMA,
the best possible offer and the most advantageous to the
government is that of HPPL and HPPL is accordingly selected
as the winning bidder and is hereby awarded the
concession for the operation and development of the Subic
Bay Container Terminal.[9] (Underscoring supplied)
In a letter dated September 24, 1996, the SBMA Board
of Directors submitted to the Office of the President the results
of the re-evaluation of the bid proposals, to wit:
SBMA, through the unanimous vote of all the Board Members,
excluding the Chairman of the Board who voluntarily inhibited
himself from participating in the re-evaluation, selected the
HPPL bid as the winning bid, being: the conforming bid with
a realistic Business Plan offering the greatest financial return
to the SBMA; the best possible offer in the market, and the
most advantageous to the government in accordance with the
Tender Document.[10]
Notwithstanding the SBMA Boards recommendations
and action awarding the project to HPPL, then Executive
Secretary Ruben Torres submitted a memorandum to the
Office of the President recommending that another
rebidding be conducted.[11] Consequently, the Office of the
President issued a Memorandum directing the SBMA Board of
Directors to refrain from signing the Concession Contract with
HPPL and to conduct a rebidding of the project.[12]
In the meantime, the Resident Ombudsman for the
DOTC filed a complaint against members of the SBMA-PBAC
before the Office of the Ombudsman for alleged violation of
Section 3(e) of Republic Act No. 3019 for awarding the contract
to HPPL. On April 16, 1997, the Evaluation and Preliminary
Investigation Bureau of the Office of the Ombudsman issued a
Resolution absolving the members of the SBMA-PBAC of any
liability and dismissing the complaint against them, ruling thus:
After an assiduous study of the respective contentions of both
parties, we are inclined to hold, as it is hereby held, that there
is no proof on record pinpointing respondents to have acted in
excess of their discretion when they awarded the bid to
HPPL. Records revealed that respondents, in the exercise of
their discretion in determining the financial packages offered
by the applicants, were guided by the expert report of Davis,
Langdon and Seah (DLS) that fairly evaluated which of the
bidders tender the greatest financial return to the
government. There is no showing that respondents had
abused their prerogatives. As succinctly set forth in the DLS
report it stated, among others, that, in assessing the full
financial return to SBMA offered by the bidders, it is necessary
to consider the following critical matters:
1. Royalty fees
2. Volume of TEUs as affected by:
a. Tariff rates;
b. Marketing strategy;
c. Port facilities; and
d. Efficient reliable services.
With the preceding parameters for the evaluation of bidders
business plan, the respondents were fairly guided by, as they
aligned their judgment in congruence with, the opinion of the
panel of experts and the SBMAs Technical Evaluation
Committee to the effect that HPPLs business is superior while
that of ICTSIs appeared to be unrealistically high which may
eventually hinder the competitiveness of the SBMA port with
the rest of the world. Respondents averred that the panel of
World Bank experts noted that ICTSIs high tariff rates at U.S.
$119.00 per TEU is already higher by 37% through HPPL,
which could further increase by 20% in the first two (2) years
and by 5% hike thereafter. In short, high tariffs would
discourage potential customers which may be translated into
low cargo volume that will eventually reduce financial return to
SBMA. Respondents asserted that HPPLs business plan
offers the greatest financial return which could be equated
that over the five years, HPPL offers 1.25 billion pesos while
ICTSI offers P0.859 billion, and RPSI offers P.420 billion. Over
the first ten years HPPL gives P2.430 billion, ICTSI tenders
P2.197 billion and RPSI has P1.632 billion.
Viewed from this perspective alongside with the evidence on
record, the undersigned panel does not find respondents to
have exceeded their discretion in awarding the bid to
HPPL.Consequently, it could not be said that respondents act
had placed the government at a grossly disadvantageous
plight that could have jeopardized the interest of the Republic
of the Philippines.[13]
On July 7, 1997, the HPPL, feeling aggrieved by the
SBMAs failure and refusal to commence negotiations and to
execute the Concession Agreement despite its earlier
pronouncements that HPPL was the winning bidder, filed a
complaint[14] against SBMA before the Regional Trial Court
(RTC) of Olongapo City, Branch 75, for specific performance,
mandatory injunction and damages. In due time, ICTSI, RPSI
and the Office of the President filed separate Answers-in-
Intervention[15] to the complaint opposing the reliefs sought by
complainant HPPL.
Complainant HPPL alleged and argued therein that a
binding and legally enforceable contract had been established
between HPPL and defendant SBMA under Article 1305 of
the Civil Code, considering that SBMA had repeatedly
declared and confirmed that HPPL was the winning
bidder. Having accepted HPPLs offer to operate and develop
the proposed container terminal, defendant SBMA is duty-
bound to comply with its obligation by commencing
negotiations and drawing up a Concession Agreement with
plaintiff HPPL. HPPL also pointed out that the bidding
procedure followed by the SBMA faithfully complied with
existing laws and rules established by SBMA itself; thus, when
HPPL was declared the winning bidder it acquired the
exclusive right to negotiate with the SBMA. Consequently,
plaintiff HPPL posited that SBMA should be: (1) barred from
conducting a re-bidding of the proposed project and/or
performing any such acts relating thereto; and (2) prohibited
from negotiating with any party other than plaintiff HPPL until
negotiations between HPPL and SBMA have been concluded
or in the event that no acceptable agreement could be arrived
at. Plaintiff HPPL also alleged that SBMAs continued refusal to
negotiate the Concession Contract is a substantial
infringement of its proprietary rights, and caused damage and
prejudice to plaintiff HPPL.
Hence, HPPL prayed that:
(1) Upon the filing of this complaint, hearings be scheduled to
determine the propriety of plaintiffs mandatory injunction
application which seeks to order defendant or any of its
appropriate officers or committees to forthwith specify the date
as well as to perform any and all such acts (e.g. laying the
ground rules for discussion) for the commencement of
negotiations with plaintiff with the view to signing at the earliest
FINALS CONSTITUTION I ACJUCO 70
possible time a Concession Agreement for the development
and operation of the Subic Bay Container Terminal.
(2) Thereafter, judgment be rendered in favor of plaintiff and
against defendant:
2.1. Making permanent the preliminary mandatory injunction it
had issued;
2.2. Ordering defendant to implement the Concession
Agreement it had executed with plaintiff in respect of the
development and operation of the proposed Subic Bay
Container Terminal;
2.3. Ordering defendant to pay for the cost of plaintiffs
attorneys fees in the amount of P500,000.00, or as otherwise
proven during the trial.
Plaintiff prays for other equitable reliefs. [16]
During the pre-trial hearing, one of the issues raised and
submitted for resolution was whether or not the Office of the
President can set aside the award made by SBMA in favor
of plaintiff HPPL and if so, can the Office of the President
direct the SBMA to conduct a re-bidding of the proposed
project.
While the case before the trial court was pending
litigation, on August 4, 1997, the SBMA sent notices to plaintiff
HPPL, ICTSI and RPSI requesting them to declare their
interest in participating in a rebidding of the proposed
project.[17] On October 20, 1997, plaintiff HPPL received a copy
of the minutes of the pre-bid conference which stated that the
winning bidder would be announced on December 5,
1997.[18] Then on November 4, 1997, plaintiff HPPL learned
that the SBMA had accepted the bids of ICTSI and RPSI who
were the only bidders who qualified.
In order to enjoin the rebidding while the case was still
pending, plaintiff HPPL filed a motion for maintenance of
the status quo[19] on October 28, 1997. The said motion was
denied by the court a quo in an Order dated November 3,
1997, to wit:
Plaintiff maintains that by voluntarily participating in this
proceedings, the defendant and the intervenors have
unqualifiedly agreed to submit the issue of the propriety,
legality and validity of the Office of the Presidents directive that
the SBMA effect a rebidding of its concession contract or the
operation of the Subic Bay Container Terminal. As such, the
status quo must be maintained in order not to thwart the courts
ability to resolve the issues presented. Further, the ethics of
the profession require that counsel should discontinue any act
which tends to render the issues academic.
The Opposition is anchored on lack of jurisdiction since the
issuance of a cease-and-desist order would be tantamount to
the issuance of a Temporary Restraining Order or a Writ of
Injunction which this Court cannot do in light of the provision of
Section 21 of R.A. 7227 which states:
Section 21. Injunction and Restraining Order. The
implementation of the projects for the conversion into
alternative productive uses of the military reservations are
urgent and necessary and shall not be restrained or enjoined
except by an order issued by the Supreme Court of the
Philippines.
During the hearing on October 30, 1997, SBMAs counsel
revealed that there is no law or administrative rule or regulation
which requires that a bidding be accomplished within a definite
time frame.
Truly, the matter of the deferment of the re-bidding on
November 4, 1997 rests on the sound discretion of the
SBMA. For this Court to issue a cease-and-desist order would
be tantamount to an issuance of a Temporary Restraining
Order or a Writ of Preliminary Injunction. (Prado v. Veridiano II,
G.R. No. 98118, December 6, 1991).
The Court notes that the Office of the President has not been
heard fully on the issues. Moreover, one of the intervenors is
of the view that the issue of jurisdiction must be resolved first,
ahead of all the other issues.
WHEREFORE, and viewed from the foregoing considerations,
plaintiffs motion is DENIED.
SO ORDERED.[20] (Underscoring supplied)
Hence, this petition filed by petitioner (plaintiff below)
HPPL against respondents SBMA, ICTSI, RPSI and the
Executive Secretary seeking to obtain a prohibitory
injunction. The grounds relied upon by petitioner HPPL to
justify the filing of the instant petition are summed up as
follows:
29. It is respectfully submitted that to allow or for this
Honorable Court to otherwise refrain from restraining SBMA,
during the pendency of this suit, from committing the
aforementioned act(s) which will certainly occur on 5
December 1997 such action (or inaction) will work an injustice
upon petitioner which has validly been announced as the
winning bidder for the operation of the Subic Bay Container
Terminal.
30. To allow or for this Honorable Court to otherwise refrain
from restraining SBMA, during the pendency of this suit, from
committing the aforementioned threatened acts would be in
violation of petitioners rights in respect of the action it had filed
before the RTC of Olongapo City in Civil Case No. 243-O-97,
and could render any judgment which may be reached by said
Court moot and ineffectual. As stated, the legal issues raised
by the parties in that proceedings are of far reaching
importance to the national pride and prestige, and they impact
on the integrity of government agencies engaged in
international bidding of privatization projects. Its resolution on
the merits by the trial court below and, thereafter, any further
action to be taken by the parties before the appellate courts will
certainly benefit respondents and the entire Filipino people.[21]
WHEREFORE, petitioner HPPL sought relief praying
that:
a) Upon the filing of this petition, the same be given due course
and a temporary restraining order and/or writ of preliminary
injunction be issued ex parte, restraining SBMA or any of its
committees, or other persons acting under its control or
direction or upon its instruction, from declaring any winner on 5
December 1997 or at any other date thereafter, in connection
with the rebidding for the privatization of the Subic Bay
Container Terminal and/or for any, some or all of the
respondents to perform any such act(s) in pursuance thereof,
until further orders from this Honorable Court;
b) After appropriate proceedings, judgment be rendered in
favor of petitioner and against respondents --
FINALS CONSTITUTION I ACJUCO 71
(1) Ordering SBMA to desist from conducting any rebidding or
in declaring the winner of any such rebidding in respect of the
development and operation of the Subic Bay Container
Terminal until the judgment which the RTC of Olongapo City
may render in Civil Case No. 243-O-97 is resolved with finality;
(2) Declaring null and void any award which SBMA may
announce or issue on 5 December 1997; and
(3) Ordering respondents to pay for the cost of suit.
Petitioner prays for other equitable reliefs. [22]
The instant petition seeks the issuance of an injunctive
writ for the sole purpose of holding in abeyance the conduct by
respondent SBMA of a rebidding of the proposed SBICT
project until the case for specific performance is resolved by
the trial court. In other words, petitioner HPPL prays that
the status quo be preserved until the issues raised in the main
case are litigated and finally determined. Petitioner was
constrained to invoke this Courts exclusive jurisdiction and
authority by virtue of the above-quoted Republic Act 7227,
Section 21.
On December 3, 1997, this Court granted petitioner
HPPLs application for a temporary restraining order enjoining
the respondent SBMA or any of its committees, or other
persons acting under its control or direction or upon its
instruction, from declaring any winner on December 5, 1997 or
at any other date thereafter, in connection with the rebidding
for the privatization of the Subic Bay Container Terminal and/or
for any, some or all of the respondents to perform any such act
or acts in pursuance thereof.[23]
There is no doubt that since this controversy arose,
precious time has been lost and a vital infrastructure project
has in essense been mothballed to the detriment of all parties
involved, not the least of which is the Philippine Government,
through its officials and agencies, who serve the interest of the
nation. It is, therefore, imperative that the issues raised herein
and in the court a quo be resolved without further delay so as
not to exacerbate an already untenable situation.
At the outset, the application for the injunctive writ is only
a provisional remedy, a mere adjunct to the main suit. [24] Thus,
it is not uncommon that the issues in the main action are
closely intertwined, if not identical, to the allegations and
counter allegations propounded by the opposing parties in
support of their contrary positions concerning the propriety or
impropriety of the injunctive writ. While it is not our intention to
preempt the trial courts determination of the issues in the main
action for specific performance, this Court has a bounden duty
to perform; that is, to resolve the matters before this Court in a
manner that gives essence to justice, equity and good
conscience.
While our pronouncements are for the purpose only of
determining whether or not the circumstances warrant the
issuance of the writ of injunction, it is inevitable that it may have
some impact on the main action pending before the trial
court. Nevertheless, without delving into the merits of the main
case, our findings herein shall be confined to the necessary
issues attendant to the application for an injunctive writ.
For an injunctive writ to be issued, the following
requisites must be proven:
First. That the petitioner/applicant must have a clear and
unmistakable right.
Second. That there is a material and substantial invasion of
such right.
Third. That there is an urgent and permanent necessity for the
writ to prevent serious damage.[25]
To our mind, petitioner HPPL has not sufficiently
shown that it has a clear and unmistakable right to be
declared the winning bidder with finality, such that the
SBMA can be compelled to negotiate a Concession
Contract. Though the SBMA Board of Directors, by resolution,
may have declared HPPL as the winning bidder, said award
cannot be said to be final and unassailable. The SBMA
Board of Directors and other officers are subject to the
control and supervision of the Office of the President. All
projects undertaken by SBMA require the approval of the
President of the Philippines under Letter of Instruction No.
620, which places the SBMA under its ambit as an
instrumentality, defined in Section 10 thereof as an agency of
the national government, not integrated within the department
framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy, usually
through a charter. This term includes regulatory agencies,
chartered institutions and government owned and controlled
corporations.[26] (Underscoring supplied)
As a chartered institution, the SBMA is always under
the direct control of the Office of the President,
particularly when contracts and/or projects undertaken by
the SBMA entail substantial amounts of
money. Specifically, Letter of Instruction No. 620 dated
October 27, 1997 mandates that the approval of the
President is required in all contracts of the national
government offices, agencies and instrumentalities,
including government-owned or controlled corporations
involving two million pesos (P2,000,000.00) and above,
awarded through public bidding or negotiation. The
President may, within his authority, overturn or reverse any
award made by the SBMA Board of Directors for justifiable
reasons. It is well-established that the discretion to accept
or reject any bid, or even recall the award thereof, is of
such wide latitude that the courts will not generally
interfere with the exercise thereof by the executive
department, unless it is apparent that such exercise of
discretion is used to shield unfairness or injustice. When
the President issued the memorandum setting aside the award
previously declared by the SBMA in favor of HPPL and
directing that a rebidding be conducted, the same was, within
the authority of the President and was a valid exercise of
his prerogative.Consequently, petitioner HPPL acquired no
clear and unmistakable right as the award announced by the
SBMA prior to the Presidents revocation thereof was not final
and binding.
There being no clear and unmistakable right on the part
of petitioner HPPL, the rebidding of the proposed project
can no longer be enjoined as there is no material and
substantial invasion to speak of. Thus, there is no longer
any urgent or permanent necessity for the writ to prevent any
perceived serious damage. In fine, since the requisites for the
issuance of the writ of injunction are not present in the instant
case, petitioners application must be denied for lack of merit.[27]
Finally, we focus on the matter of whether or not
petitioner HPPL has the legal capacity to even seek redress
from this Court. Admittedly, petitioner HPPL is a foreign
corporation, organized and existing under the laws of the
British Virgin Islands. While the actual bidder was a consortium
composed of petitioner, and two other corporations, namely,
Guoco Holdings (Phils.) Inc. and Unicol Management
Servises, Inc., it is only petitioner HPPL that has brought the
controversy before the Court, arguing that it is suing only on an
isolated transaction to evade the legal requirement that foreign
corporations must be licensed to do business in the Philippines
to be able to file and prosecute an action before Philippines
courts.
FINALS CONSTITUTION I ACJUCO 72

The maelstrom of this issue is whether participating in

the bidding is a mere isolated transaction, or did it constitute
engaging in or transacting business in the Philippines such that
petitioner HPPL needed a license to do business in the
Philippines before it could come to court.
There is no general rule or governing principle laid down
as to what constitutes doing or engaging in or transacting
business in the Philippines. Each case must be judged in the
light of its peculiar circumstances. [28] Thus, it has often been
held that a single act or transaction may be considered as
doing business when a corporation performs acts for which it
was created or exercises some of the functions for which it was
organized. The amount or volume of the business is of no
moment, for even a singular act cannot be merely incidental or
casual if it indicates the foreign corporations intention to do
business.[29]
Participating in the bidding process constitutes doing
business because it shows the foreign corporations intention
to engage in business here. The bidding for the concession
contract is but an exercise of the corporations reason for
creation or existence. Thus, it has been held that a foreign
company invited to bid for IBRD and ADB international projects
in the Philippines will be considered as doing business in the
Philippines for which a license is required. In this regard, it is
the performance by a foreign corporation of the acts for which
it was created, regardless of volume of business, that
determines whether a foreign corporation needs a license or
not.[30]
The primary purpose of the license requirement is to
compel a foreign corporation desiring to do business within the
Philippines to submit itself to the jurisdiction of the courts of the
state and to enable the government to exercise jurisdiction
over them for the regulation of their activities in this
country.[31] If a foreign corporation operates a business in the
Philippines without a license, and thus does not submit itself to
Philippine laws, it is only just that said foreign corporation be
not allowed to invoke them in our courts when the need
arises. While foreign investors are always welcome in this land
to collaborate with us for our mutual benefit, they must be
prepared as an indispensable condition to respect and be
bound by Philippine law in proper cases, as in the one at
bar.[32] The requirement of a license is not intended to put
foreign corporations at a disadvantage, for the doctrine of lack
of capacity to sue is based on considerations of sound public
policy.[33] Accordingly, petitioner HPPL must be held to be
incapacitated to bring this petition for injunction before this
Court for it is a foreign corporation doing business in the
Philippines without the requisite license.
WHEREFORE, in view of all the foregoing, the instant
petition is hereby DISMISSED for lack of merit. Further, the
temporary restraining order issued on December 3, 1997 is
LIFTED and SET ASIDE. No costs.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 73
[G. R. No. 143481. February 15, 2002]
NATIONAL ELECTRIFICATION
ADMINISTRATION, petitioner, vs. COMMISSION ON
AUDIT, respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure with prayer for preliminary injunction
and temporary restraining order, to reverse and set aside
Decision No. 2000-132 dated May 16, 2000 of the Commission
on Audit[1] (Commission for brevity) in RE: Appeal of Mr.
Conrado Estrella III, Administrator, National Electrification
Administration (NEA) Quezon City, for the lifting of the
disallowance on the payment of accelerated increases under
Joint Resolution No. 01 totaling P14,155,342.00. The
dispositive portion of the Decision reads:
Premises considered, the instant appeal has to be, as it is
hereby denied for lack of legal basis. Consequently, the Notice
of Disallowance issued by the NEA Auditor covering the
subject disbursement is hereby sustained. Accordingly, all
NEA officials and employees who received compensation and
allowances in violation of the provisions of Executive Order No.
389 and National Budget Circular No. 458 are hereby directed
to refund the same within a period of one year after the
promulgation of this decision. NEA management is enjoined to
effect said refund under the supervision of the NEA Auditor
who shall ensure the proper and strict implementation of this
decision.[2]
The Antecedent Facts
Petitioner National Electrification Administration (NEA for
brevity) is a government-owned and controlled corporation
created under Presidential Decree No. 269, as
amended. NEA is charged with the responsibility of
organizing, financing and regulating electric cooperatives
throughout the country.
On July 1, 1989, Republic Act No. 6758 (RA 6758),
entitled An Act Prescribing a Revised Compensation and
Position Classification System in the Government and For
Other Purposes, took effect. RA 6758 provided, among others,
a salary schedule for all government positions, appointive
or elective, including positions in government-owned or
controlled corporations and government financial institutions.
In response to pressing economic difficulties and the
need to alleviate the plight of government personnel, the
Senate and the House of Representatives passed on March 3,
1994 Joint Resolution No. 01 entitled Urging the President of
the Philippines to Revise the Existing Compensation and
Position Classification System in the Government and to
Implement the Same Initially Effective January 1,
1994. Approved by then President Fidel V. Ramos on March 7,
1994, Joint Resolution No. 01 adjusted the salary schedule of
all officials and employees of the government. Paragraph 10 of
Joint Resolution No. 01 provides that the new salary
schedule shall be implemented within four (4)
years beginning in 1994.
On December 28, 1996, then President Fidel V. Ramos
issued Executive Order No. 389 (EO 389)
entitled Implementing the Fourth and Final Year Salary
Increases Authorized by Joint Senate and House of
Representatives Resolution No. 01, Series of 1994. EO 389
directed payment of the fourth and final salary increases
authorized under Joint Resolution No. 01 in two tranches, as
follows:
SEC. 2. Full Implementation. The Department of Budget and
Management is hereby directed to implement in full in FY 1997
the remaining balance of said Salary Schedule after the partial
implementation made of the same in 1994, 1995 and 1996 to
civilian and uniformed personnel, as follows:
1. For Civilian Personnel
a. Effective January 1, 1997 = in
accordance with the Fourth Interim
Salary Schedule hereto attached and
marked as Annex A of this Order. The
adjustment shall be to the designated
salary step of the employee in the
salary grade allocation of his position
as of December 31, 1996;
b. Effective November 1, 1997 = in
accordance with the attached Salary
Schedule marked as Annex B of this
Order. The adjustment shall be to the
designated salary step of the
employee in the salary grade
allocation of his position as of October
31, 1997.
x x x.
The Department of Budget and Management (DBM for
brevity) issued Implementing Guidelines under National
Budget Circular No. 458 (NBC No. 458), series of
1997, reiterating the schedule of payments in EO 389.
In January 1997, NEA implemented the salary increases
prescribed for the year 1997 pursuant to Joint Resolution No.
01. However, NEA did not implement the salary increases in
accordance with the schedule of payment specified in EO 389
and NBC No. 458. Instead, NEA implemented in one lump
sum beginning January 1, 1997 the salary increases
required to be paid in two tranches, the first tranche
on January 1, 1997 and the second tranche on November
1, 1997. Otherwise stated, NEA accelerated the
implementation of the salary increase by paying the
second tranche starting January 1, 1997 instead
of November 1, 1997.
On September 26, 1997, the Commissions resident
auditor in NEA issued a Notice of Suspension requiring the
submission of the legal basis for the full implementation of the
new salary schedule effective January 1, 1997 instead
of November 1, 1997. The NEA failed to submit the basis for
its advance implementation of the prescribed salary
rates. Thus, the Commissions resident auditor issued on May
14 and 27, 1998, Notices of Disallowance Nos. 98-010-101
and 98-011-101, respectively. The resident auditor issued
another Notice of Disallowance on September 18,
1998. On September 28, 1998 the resident auditor denied
NEAs September 23, 1998 request to reconsider the
disallowance. Consequently, NEA appealed to the Corporate
Audit Office II of the Commission but the appeal was denied
on February 5, 1999. On March 12, 1999, NEA filed an appeal
with the Commission en banc but the latter denied the same
on May 16, 2000 and sustained the disallowance made by the
resident auditor.
Hence, this Petition.
Ruling of the Commission on Audit
In sustaining the disallowance made by the resident
auditor, the Commission explained thus:
FINALS CONSTITUTION I ACJUCO 74
After a careful evaluation of the facts and pertinent laws
obtaining in this case, this Commission finds the instant
appeal bereft of merit. Pursuant to Article 29 (1) of the 1987
Constitution No money shall be paid out of the Treasury except
in pursuance of an appropriation made by law. Also, under
R.A. 8244, a law appropriating twenty-seven billion pesos for
the fourth and final year of implementation of the salary
increases pursuant to the Senate-House of Representatives
Resolution No. 01 Series of 1994 for all National Government
civilian and uniformed personnel, it is specifically provided that
the salary increases shall be effective on the following
schedule of payments:
1. Effective January 1, 1997 for the first 50% of the
unimplemented balance as of December 31,
1996; and
2. Effective November 1, 1997 the remaining fifty
percent (50%) of said unimplemented balance
to effect full salary adjustment.
Perusal of the provision of E.O. No. 389 and National Budget
Circular No. 458 Series of 1997 would show the same
effectivity dates or schedule of payments. Suffice it to say, that
the aforequoted provisions of law treating on the subject salary
implementation is clear and unequivocal such that there could
never be any room for a different interpretation regarding the
effectivity dates except that which is explicitly stated
therein. Thus, when the NEA effected full implementation of
the new salary schedule on January 1, 1997, instead
of November 1, 1997, NEA was, then, clearly acting in
violation of the mandates of the law. Consequently, said
wrongful implementation must be struck down for being
baseless and unlawful, and all its employees who received the
undue increases must necessarily return the amount thus
received.
The Issues
In its Memorandum,[3] NEA avers that the Commission
committed grave abuse of discretion amounting to lack or
excess of jurisdiction in disallowing the increased salaries of
NEAs officials and employees for the period January 1,
1997 to October 31, 1997 for the following reasons:
1. NEAs accelerated implementation of SSL II is in
accordance with law, Joint Senate-House of
Representatives Resolution No. 01 dated
March 3, 1994, particularly Section 10 thereof
x x x.
2. The fund to pay such increase had the
imprimatur of the DBM and was included in the
General Appropriations Act of 1997 (R.A. 8250)
x x x.[4]
In the main, NEA argues that it may accelerate the
implementation of the salary increases for the year 1997 due
to the availability of funds
The Courts Ruling
The Petition has no merit.
First, we find that NEAs accelerated implementation of
the Salary Standardization Law II is not in accordance with
law.
We reject NEAs claim that Republic Act No. 8250,
otherwise known as the General Appropriations Act of 1997
(1997 GAA), serves as legal basis for NEAs accelerated
implementation of the last phase of the Salary Standardization
Law II. The 1997 GAA is not self-executory so as to serve as
outright legal authority for NEA to spend what had been
appropriated for NEAs Personal Services under the 1997
GAA. Budgetary appropriations under the GAA do not
constitute unbridled authority to government agencies to spend
the appropriated amounts as they may wish.
Pursuant to the provisions on National Government
Budgeting[5] found in the Revised Administrative Code of 1987
(Administrative Code), appropriations for Personal Services
are not itemized. Thus, the 1997 GAA contains a lump sum
appropriation of P210, 766,000.00 for NEAs Personal
Services, broken down into P37, 476,000.00 for General
Administration and Support, P103, 855,000.00 for Support to
Operations, and P69, 435,000.00 for Operations. There is no
itemization of Personal Services in the 1997 GAA, and
nothing is mentioned therein about the acceleration or full
payment of the Salary Standardization Law II.
The itemization of Personal Services is
prepared after the enactment of the annual GAA and
requires the approval of the President. Thus, Section 23,
Chapter 4, Book IV of the Administrative Code provides that:
SEC. 23. Content of the General Appropriations Act. The
General Appropriations Act shall be presented in the form of
budgetary programs and projects for each agency of the
government, with the corresponding appropriations for each
program and project, including statutory provisions of specific
agency or general applicability. The General Appropriations
Act shall not contain any itemization of personal services,
which shall be prepared by the Secretary after enactment
of the General Appropriations Act, for consideration and
approval of the President. (Emphasis supplied)
Further, the execution of the annual GAA is subject to a
program of expenditure to be approved by the President and
this approved program of expenditure is the basis for the fund
release. Thus, Section 34, Chapter 5, Book IV of the
Administrative Code states that
Sec. 34. Program of Expenditure - The Secretary of Budget
shall recommend to the President the years program of
expenditure for each agency of the government on the basis of
authorized appropriations.The approved expenditure
program shall constitute the basis for fund release during
the fiscal period, subject to such policies, rules and
regulations as may be approved by the
President. (Emphasis supplied)
Moreover, Section 60, Chapter 7, Book VI of the
Administrative Code provides that no portion of the
appropriations in the GAA shall be used for payment of any
salary increase or adjustment unless specifically authorized by
law or appropriate budget circular. It reads:
SEC. 60. Restrictions on Salary Increases. No portion of the
appropriations provided in the General Appropriations Act
shall be used for payment of any salary increase or
adjustment unless specifically authorized by law or
appropriate budget circular nor shall any appropriation for
salaries authorized in the General Appropriations Act, save as
otherwise provided for under the Compensation and Position
Classification Act, be paid unless the positions have been
classified by the Budget Commission. (Emphasis supplied)
Finally, Section 33 of the 1997 GAA itself expressly
provides that the salary increases authorized by the Senate-
House of Representatives Joint Resolution No. 01 or the
Salary Standardization Law II are subject to approval by the
President. It reads:
Sec. 33. Compensation Adjustment and Productivity Incentive
Benefits. The amount authorized for Compensation
Adjustment and Productivity Incentive Benefits shall be used
FINALS CONSTITUTION I ACJUCO 75
for the adjustment in basic salary and associated benefits of
national government personnel pursuant to Joint Resolution
No. 01, s. 1994 of Congress, as well as Productivity Incentive
Benefits as may be approved by the President: PROVIDED,
That such compensation adjustment shall be fully implemented
within FY 1997: PROVIDED, FURTHER, That transportation
allowance, if any, shall be deducted from or reduced by the
salary adjustment: PROVIDED, FURTHERMORE, That
compensation adjustment for government-owned or controlled
corporations and local government units shall be charged to
their corporate and local funds, respectively: xxx. (Emphasis
supplied)
Clearly, NEA cannot automatically spend its authorized
appropriation for Personal Services under the 1997 GAA. The
Budget Secretary must first prepare an itemization of the
Personal Services, and submit the same for approval of the
President. Next, the Budget Secretary must recommend to the
President NEAs program of expenditure for the current year
based on NEAs authorized appropriation. The President may
approve the expenditure program subject to certain policies
and rules. The salary adjustments as well as the associated
benefits granted by the Salary Standardization Law II are,
under the 1997 GAA, expressly subject to the Presidents
approval. Appropriations for salary increases or adjustments
shall be released as specifically authorized by law or
appropriate budget circular, which in this case is National
Budget Circular No. 458. Hence, compliance with said budget
circular is mandatory.
The rules on National Government Budgeting as
prescribed by the Administrative Code are not idle or empty
exercises. The mere approval by Congress of the GAA does
not instantly make the funds available for spending by the
Executive Department. The funds authorized for disbursement
under the GAA are usually still to be collected during the fiscal
year. The revenue collections of the government, largely from
taxes, may fall short of the approved budget, as has been the
normal occurrence almost every year.
This puts the Executive Department in a dilemma: borrow
money to bridge the deficit, or cut down on spending even if
the expenditure is authorized by the general appropriations
law. Borrowing money locally puts an upward pressure on
interest rates, while borrowing from abroad increases our
foreign debt stock and eventually puts a downward pressure
on the peso. On the other hand, cutting down on spending
impairs the delivery of basic services and dampens the
economy. The Executive Department must balance
carefully these economic and social factors, and to do this
it must calibrate government disbursements to match, as much
as possible, receipt of revenues. This is the rationale behind
the rules on National Government Budgeting.
Next, NEA argues that an intention to exempt adequately
funded government-owned or controlled corporations (GOCCs
for brevity) from the two-tranche payment can be gleaned from
the last paragraph of Section 10 of EO 389 which reads:
GOCCs, GFIs and LGUs which do not have adequate or
sufficient funds to pay the salary increases prescribed herein,
may only partially implement the established rate; Provided,
That, any partial implementation should be fixed at a uniform
percentage such that no official or employee shall receive a
percentage adjustment higher than that of any other
official/employee in the same corporate entity and local
government unit.
The interpretation placed by NEA on Section 10 does not
find support in the text thereof expressium facit cessare
tacitum what is expressed puts an end to that which is
implied.[6]Section 10 refers only to GOCCs with insufficient
funds to pay the salary increases. Section 10 expressly
authorizes GOCCs with insufficient funds to partially
implement the prescribed salary increases in a uniform and
non-discriminatory manner. Nothing in Section 10
authorizes GOCCs with sufficient funds to accelerate the
prescribed schedule of salary increases. Clearly, Section
10 of EO 389 does not authorize, expressly or impliedly, the
advance implementation of the salary increases just because
a GOCC has the available funds.
NEA also contends that its accelerated implementation
of the salary increases is supported by the Memorandum of
the Office of the President dated November 7, 1995, the
subject of which reads, xxx: Authorizing the Acceleration of the
Implementation of the Revised Compensation and Position
Classification Plan provided in Senate-House of
Representatives Joint Resolution No. 01 Adopted and
Approved on 07 March 1994 to Government-Owned and/or
Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs). According to NEA, the Memorandum allows
full implementation of salary increases x x x not earlier
than November 1, 1996. The specific provision referred to by
NEA reads as follows:
The three tranches scheme for GOCCs are as follows:
FIRST - effective not earlier than 01 November 1997 at an
amount as may be determined by the governing Board of the
GOCC concerned, provided such amount shall not exceed
30% of the unimplemented balance of said Salary Schedule;
SECOND - the 30% of the said balance or any lower amount
as may be determined by the governing Board of the
concerned GOCC may be implemented not earlier than 01
April 1996; and
THIRD- the remaining balance may be implemented not
earlier than 01 November 1996. (Emphasis supplied)
The Memorandum, which allows full implementation of
the salary increases NOT earlier than November 1, 1996,
does not automatically accelerate the staggered salary
increases for 1997. On the contrary, the Memorandum
specifically provides that accelerated implementation can be
availed of by GOCCs and GFIs x x x only upon prior
approval of the DBM. In order to secure such prior approval
from the DBM, GOCCs and GFIs must submit an application
for acceleration to the DBM which will evaluate and act on the
same on the basis of nine terms and conditions specifically
enumerated in the Memorandum. The Memorandum provides
thus:
The GOCC and GFI can avail of the above accelerated
implementation only upon prior approval by the DBM. For
this purpose, GOCC and GFI will submit an application for
acceleration to DBM which will evaluate and act on same on
the basis of the following terms and conditions:
1. the GOCC and GFI shall have never been
seriously/critically assailed to have caused or
contributed to the economic problems of the
country as evidenced by duly verified/proven
facts presented in a responsible published
public criticism;
2. That it must not have received any subsidy or
other forms of financial support from the
national government in financing its operation
or in the implementation of projects for the last
three (3) years;
3. that its operational performance for the same
period, as well as its present financial position,
FINALS CONSTITUTION I ACJUCO 76
is indicative that the concerned GOCC and GFI
will remain financially viable and capable of
financing its operations;
4. that it has actually remitted all mandatory
dividends to the national government through
the National Treasury equivalent to 50% of its
net income pursuant to R.A. No. 7656, dated
09 November 1993, and has no unpaid taxes
due the national government or local
government units, and their respective
agencies and instrumentalities;
5. that all advances made by the national
government for debt service and other
obligations shall have been accordingly
liquidated;
6. that it has not incurred any losses from
operations for the last three (3) years;
7. that the financial position and earning
performance of the GOCC and GFI shall in no
case be affected by SSL acceleration;
8. that the accelerated implementation herein
authorized shall strictly be based on the
Position Allocation List (PAL) specifically
approved by the DBM for such GOCC and GFI
pursuant to R.A. No. 6758, or Organizational
Structure and Staffing Pattern pursuant to
existing budgeting laws, and shall be based on
the 33-grade Salary Schedule; and
9. that no funding support shall be required from
the national government nor funds already
released and earmarked for a specific purpose
be used therefore. Funds for the purpose shall
solely be sourced from corporate funds:
x x x. (Emphasis supplied)
Evidently, in order to avail of the benefits of accelerated
implementation, NEA must secure the approval of the DBM by
complying with the terms and conditions prescribed by the
Memorandum. NEA failed to do this. Absent any authority or
approval from the DBM or the President authorizing NEA to
accelerate implementation of the last phase of the salary
increase, NEAs accelerated payment is without legal basis.
Neither could NEA successfully assail the authority of the
President to issue EO 389. The Administrative Code has
unequivocally vested the President with rule-making powers in
the form of executive orders, administrative orders,
proclamations, memorandum orders and circulars and general
or special orders.[7] An executive order, like the one prescribing
the salary schedules, is defined in the Administrative Code as
follows:
Sec. 2. Executive Orders. Acts of the President providing for
rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be
promulgated in executive orders.[8] (Italics supplied)
Joint Resolution No. 01 expressly acknowledges the
authority of the President to revise the existing compensation
and position classification under the standards and guidelines
provided by said Resolution.[9] Further, paragraph 13 of the
Resolution states that:
(13) Implementing Guidelines - The Department of Budget and
Management shall prepare and issue the necessary guidelines
for the implementation of the revised compensation and
position classification system consistent with the governing
executive order to be issued by the Office of the
President. (Emphasis supplied)
As the administrative head of the government, the
President is vested with the power to execute, administer
and carry out laws into practical operation. Hence, the
Court has held that -
While Congress is vested with the power to enact laws, the
President executes the laws. The executive power is vested
in the President. It is generally defined as the power to enforce
and administer the laws.It is the power of carrying (out) the
laws into practical operation and enforcing their due
observance.[10]
There could be no doubt that EO 389 has been issued
on authority and within the confines of the law. Joint Resolution
No. 01 established a time frame of four years [11] for the
implementation of the Salary Standardization Law II.
Consonant with this time frame, the initial implementation was
effected in 1994 through Executive Order No. 164; in 1995
through Executive Order No. 218; in 1996 through Executive
Order No. 290 and clarified by Presidential Memorandum to
the Secretary of Budget and Management dated November 7,
1995. For the fourth and final year, Executive Order No. 389
dated December 28, 1996 was issued by the President. Oddly,
NEA does not question the authority of the President to issue
the executive orders implementing the Salary Standardization
Law II previous to EO 389. Apparently, NEA complied with the
previous executive orders implementing Joint Resolution No.
01.
NEA argues that the Commission failed to take note that
RA 8244, which provides for the same schedule of payment as
EO 389 and NBC No. 458, is intended only for all national
government civilian and uniformed personnel and not GOCCs
and GFIs. A reading of the decision of the Commission would
show that reference to RA 8244 by the Commission was
resorted to give effect to the relevant law and rules. Since RA
8244 and EO 389 are in pari materia, relating as they are to
the fourth year implementation of the salary increases
authorized by Joint Resolution No. 01, the Commission applied
said law and rules in harmony with each other. The
Commission thus stated that a perusal of RA 8244, EO 389
and NBC No. 458 would show the same effectivity dates or
schedule of payments.
Similarly untenable is NEAs contention that the
Commission acted beyond the scope of its functions in
determining whether or not NEA violated the law. According to
NEA, the Commission exceeded its authority in inquiring
whether NEAs advance release of the salary increases
violated certain laws considering that the Commissions power
is limited to a determination of whether or not there is a law
appropriating funds for that purpose. To support this theory,
NEA cites Guevara vs. Gimenez,[12] wherein the Supreme
Court allegedly outlined the scope of authority of the
Commission as follows:
Under the Constitution, the authority of the Auditor General in
connection with the expenditures of the government is limited
to the auditing of expenditures of fund or property pertaining
to, or held in trust by, the government or the provinces or
municipalities thereof. xxx xxx Such function is limited to a
determination of whether there is a law appropriating funds for
a given purpose.
The ruling in Guevara has already been overturned by
the Court in Caltex Philippines, Inc. vs. Commission on
Audit,[13] as follows:
FINALS CONSTITUTION I ACJUCO 77
The ruling on this particular point, quoted by petitioner from the
cases of Guevara vs. Gimenez and Ramos vs. Aquino, are no
longer controlling as the two (2) were decided in the light of the
1935 Constitution.
xxx. As observed by one of the Commissioners of the 1986
Constitutional Commission, Fr. Joaquin G. Bernas:
It should be noted, however, that whereas under Article XI,
Section 2, of the 1935 Constitution the Auditor General could
not correct irregular, unnecessary, excessive or extravagant
expenditures of public funds but could only bring [the matter]
to the attention of the proper administrative officer, under the
1987 Constitution, as also under the 1973 Constitution, the
Commission on Audit can promulgate accounting and auditing
rules and regulations including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures or uses of
government funds and properties. Hence, since the
Commission on Audit must ultimately be responsible for the
enforcement of these rules and regulations, the failure to
comply with these regulations can be a ground for disapproving
the payment of a proposed expenditure.
Indeed, the powers of the Commission as provided in the
1987 Constitution are broader and more extensive. Section 2,
Paragraph D, Article IX of the 1987 Constitution reads:
Sec. 2. (1) The Commission on Audit shall have the power,
authority and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust by, or
pertaining to, the government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned
and controlled corporations with original charters and on a
post-audit basis: (a) constitutional bodies, commissions and
offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities;
(c) other government-owned or controlled corporations and
their subsidiaries; and (d) such non-governmental entities
receiving subsidy or equity, directly or indirectly, from or
through the Government, which are required by law or the
granting institution to submit to such audit as a condition of
subsidy or equity. x x x.
(2) The Commission shall have exclusive authority, subject to
the limitations in the Article, to define the scope of its audit and
examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of
government funds and properties.
[14]
The Constitution and existing laws mandate the
Commission to audit all government agencies, including
government-owned or controlled corporations. The
Constitution specifically vests in the Commission the authority
to determine whether government entities comply with laws
and regulations in the disbursement of government funds and
to disallow illegal or irregular disbursements of government
funds.
Second, there is no merit in NEAs contention that the
DBM, upon its approval of NEAs proposed budget, had
effectively stamped its imprimatur on the accelerated
implementation of the salary increases starting January 1,
1997 because NEAs proposed budget for 1997 included funds
for such accelerated implementation. This is not the approval
contemplated by the Presidential Memorandum
dated November 7, 1995, which requires compliance with
specific terms and conditions. The DBMs approval of NEAs
proposed budget cannot be deemed sufficient authority to
execute the same in disregard of the relevant orders and
circulars providing for its manner of execution. The budget
process is a cycle of sequential and interrelated budget
activities regularly recurring within a specific time frame (a
twelve-month period called fiscal year).[15]
The DBMs approval of NEAs proposed budget is only a
part of the first phase of the entire budget process which
consists of four major phases, namely: Budget Preparation,
Budget Authorization, Budget Execution and Budget
Accountability.[16] After approval of the proposed budget by the
DBM, the same is submitted to Congress for evaluation and
inclusion in the appropriations law which sets forth the
authorized appropriations of the departments and
agencies. However, this authorization does not include the
authority to disburse. A program of expenditures is first
prepared showing approved programs and projects. An
itemization of personal services is also prepared listing
authorized itemized positions and their corresponding
classifications and authorized salaries. As clearly stated in
Section 60, Chapter 7, Book VI of the Administrative Code, no
portion of the appropriations in the GAA shall be used for
payment of any salary increase or adjustment unless
specifically authorized by law or appropriate budget
circular.[17] NBC No. 458 is the appropriate budget circular
referred to by the law with respect to the payment of the last
phase of the Salary Standardization Law II.
Third, under our system of government all executive
departments, bureaus and offices are under the control of the
President of the Philippines. This precept is embodied in
Article VII, Section 17 of the Constitution which provides as
follows:
Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the
laws be faithfully executed.
The presidential power of control over the executive
branch of government extends to all executive employees from
Cabinet Secretary to the lowliest clerk.[18] The constitutional
vesture of this power in the President is self-executing and
does not require statutory implementation, nor may its exercise
be limited, much less withdrawn, by the legislature. [19]
Executive officials who are subordinate to the President
should not trifle with the Presidents constitutional power of
control over the executive branch. There is only one Chief
Executive who directs and controls the entire executive
branch[20], and all other executive officials must implement in
good faith his directives and orders. This is necessary to
provide order, efficiency and coherence in carrying out the
plans, policies and programs of the executive branch.
This case would not have arisen had NEA complied in
good faith with the directives and orders of the President in the
implementation of the last phase of the Salary Standardization
Law II. The directives and orders are clearly and manifestly in
accordance with all relevant laws. The reasons advanced by
NEA in disregarding the Presidents directives and orders are
patently flimsy, even ill-conceived. This cannot be
countenanced as it will result in chaos and disorder in the
executive branch to the detriment of public service.
WHEREFORE, the instant petition is DISMISSED for
lack of merit and the Decision of the Commission on Audit
dated May 16, 2000 is AFFIRMED in toto.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 78
[G.R. No. 132988. July 19, 2000]
AQUILINO Q. PIMENTEL JR., petitioner, vs. Hon.
ALEXANDER AGUIRRE in his capacity as Executive
Secretary, Hon. EMILIA BONCODIN in her capacity as
Secretary of the Department of Budget and
Management, respondents.
ROBERTO PAGDANGANAN, intervenor.
DECISION
PANGANIBAN, J.:
The Constitution vests the President with the power of
supervision, not control, over local government units
(LGUs). Such power enables him to see to it that LGUs and
their officials execute their tasks in accordance with law. While
he may issue advisories and seek their cooperation in solving
economic difficulties, he cannot prevent them from performing
their tasks and using available resources to achieve their
goals. He may not withhold or alter any authority or power
given them by the law. Thus, the withholding of a portion of
internal revenue allotments legally due them cannot be
directed by administrative fiat.
The Case
Before us is an original Petition for Certiorari and
Prohibition seeking (1) to annul Section 1 of Administrative
Order (AO) No. 372, insofar as it requires local government
units to reduce their expenditures by 25 percent of their
authorized regular appropriations for non-personal
services; and (2) to enjoin respondents from
implementing Section 4 of the Order, which withholds a
portion of their internal revenue allotments.
On November 17, 1998, Roberto Pagdanganan, through
Counsel Alberto C. Agra, filed a Motion for Intervention/Motion
to Admit Petition for Intervention,[1] attaching thereto his
Petition in Intervention[2] joining petitioner in the reliefs
sought. At the time, intervenor was the provincial governor of
Bulacan, national president of the League of Provinces of the
Philippines and chairman of the League of Leagues of Local
Governments. In a Resolution dated December 15, 1998, the
Court noted said Motion and Petition.
The Facts and the Arguments
On December 27, 1997, the President of the Philippines
issued AO 372. Its full text, with emphasis on the assailed
provisions, is as follows:
"ADMINISTRATIVE ORDER NO. 372
ADOPTION OF ECONOMY MEASURES IN GOVERNMENT
FOR FY 1998
WHEREAS, the current economic difficulties brought about by
the peso depreciation requires continued prudence in
government fiscal management to maintain economic stability
and sustain the country's growth momentum;
WHEREAS, it is imperative that all government agencies adopt
cash management measures to match expenditures with
available resources;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers vested in
me by the Constitution, do hereby order and direct:
SECTION 1. All government departments and agencies,
including state universities and colleges, government-owned
and controlled corporations and local governments units will
identify and implement measures in FY 1998 that will reduce
total expenditures for the year by at least 25% of
authorized regular appropriations for non-personal services
items, along the following suggested areas:
1. Continued implementation of the streamlining
policy on organization and staffing by deferring
action on the following:
a. Operationalization of new agencies;
b. Expansion of organizational units and/or creation of
positions;
c. Filling of positions; and
d. Hiring of additional/new consultants, contractual and casual
personnel, regardless of funding source.
2. Suspension of the following activities:
a. Implementation of new capital/infrastructure
projects, except those which have already been
contracted out;
b. Acquisition of new equipment and motor
vehicles;
c. All foreign travels of government personnel,
except those associated with scholarships and
trainings funded by grants;
d. Attendance in conferences abroad where the
cost is charged to the government except those
clearly essential to Philippine commitments in the
international field as may be determined by the
Cabinet;
e. Conduct of trainings/workshops/seminars,
except those conducted by government training
institutions and agencies in the performance of
their regular functions and those that are funded
by grants;
f. Conduct of cultural and social celebrations and
sports activities, except those associated with the
Philippine Centennial celebration and those
involving regular competitions/events;
g. Grant of honoraria, except in cases where it
constitutes the only source of compensation from
government received by the person concerned;
h. Publications, media advertisements and related
items, except those required by law or those
already being undertaken on a regular basis;
i. Grant of new/additional benefits to employees,
except those expressly and specifically authorized
by law; and
j. Donations, contributions, grants and gifts, except
those given by institutions to victims of calamities.
FINALS CONSTITUTION I ACJUCO 79
3. Suspension of all tax expenditure
subsidies to all GOCCs and LGUs
4. Reduction in the volume of consumption of
fuel, water, office supplies, electricity and
other utilities
5. Deferment of projects that are
encountering significant implementation
problems
6. Suspension of all realignment of funds and
the use of savings and reserves
SECTION 2. Agencies are given the flexibility to identify the
specific sources of cost-savings, provided the 25% minimum
savings under Section 1 is complied with.
SECTION 3. A report on the estimated savings generated from
these measures shall be submitted to the Office of the
President, through the Department of Budget and
Management, on a quarterly basis using the attached format.
SECTION 4. Pending the assessment and evaluation
by the Development Budget Coordinating Committee
of the emerging fiscal situation, the amount
equivalent to 10% of the internal revenue allotment
to local government units shall be withheld.
SECTION 5. The Development Budget Coordination
Committee shall conduct a monthly review of the fiscal
position of the National Government and if necessary,
shall recommend to the President the imposition of
additional reserves or the lifting of previously imposed
reserves.
SECTION 6. This Administrative Order shall take effect
January 1, 1998 and shall remain valid for the entire year
unless otherwise lifted.
DONE in the City of Manila, this 27th day of December, in the
year of our Lord, nineteen hundred and ninety-seven."
Subsequently, on December 10, 1998, President Joseph
E. Estrada issued AO 43, amending Section 4 of AO 372, by
reducing to five percent (5%) the amount of internal
revenue allotment (IRA) to be withheld from the LGUs.
Petitioner contends that the President, in issuing AO 372,
was in effect exercising the power of control over LGUs. The
Constitution vests in the President, however, only the power of
general supervision over LGUs, consistent with the principle of
local autonomy. Petitioner further argues that the directive to
withhold ten percent (10%) of their IRA is in contravention of
Section 286 of the Local Government Code and of Section 6,
Article X of the Constitution, providing for the automatic
release to each of these units its share in the national internal
revenue.
The solicitor general, on behalf of the respondents,
claims on the other hand that AO 372 was issued to alleviate
the "economic difficulties brought about by the peso
devaluation" and constituted merely an exercise of the
President's power of supervision over LGUs. It allegedly does
not violate local fiscal autonomy, because it
merely directs local governments to identify measures that will
reduce their total expenditures for non-personal services by at
least 25 percent. Likewise, the withholding of 10 percent of the
LGUs IRA does not violate the statutory prohibition on the
imposition of any lien or holdback on their revenue shares,
because such withholding is "temporary in nature pending the
assessment and evaluation by the Development Coordination
Committee of the emerging fiscal situation."
The Issues
[3]
The Petition submits the following issues for the
Court's resolution:
"A. Whether or not the president committed grave abuse
of discretion [in] ordering all LGUS to adopt a 25% cost
reduction program in violation of the LGU’s fiscal
autonomy
"B. Whether or not the president committed grave abuse
of discretion in ordering the withholding of 10% of the
LGU’s IRA"
In sum, the main issue is whether (a) Section 1 of AO
372, insofar as it "directs" LGUs to reduce their
expenditures by 25 percent; and (b) Section 4 of the same
issuance, which withholds 10 percent of their internal
revenue allotments, are valid exercises of the President's
power of general supervision over local governments.
Additionally, the Court deliberated on the question
whether petitioner had the locus standi to bring this suit,
despite respondents' failure to raise the issue. [4] However, the
intervention of Roberto Pagdanganan has rendered academic
any further discussion on this matter.
The Court's Ruling
The Petition is partly meritorious.
Main Issue: Validity of AO 372 Insofar as LGUs Are
Concerned
Before resolving the main issue, we deem it important
and appropriate to define certain crucial concepts: (1) the
scope of the President's power of general supervision over
local governments and (2) the extent of the local governments'
autonomy.
Scope of President's Power of Supervision over LGUs
Section 4 of Article X of the Constitution confines the
President's power over local governments to one of
general supervision. It reads as follows:
"Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. x x x"
This provision has been interpreted to exclude the power
of control. In Mondano v. Silvosa,[5] the Court contrasted the
President's power of supervision over local government
officials with that of his power of control over executive officials
of the national government. It was emphasized that the two
terms -- supervision and control -- differed in meaning and
extent. The Court distinguished them as follows:
"x x x In administrative law, supervision means overseeing
or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed
by law to make them perform their duties. Control, on the other
hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in
the performance of his duties and to substitute the judgment of
the former for that of the latter."[6]
In Taule v. Santos,[7] we further stated that the Chief
Executive wielded no more authority than that of checking
whether local governments or their officials were performing
their duties as provided by the fundamental law and by
statutes. He cannot interfere with local governments, so
FINALS CONSTITUTION I ACJUCO 80
long as they act within the scope of their
authority. "Supervisory power, when contrasted with control, is
the power of mere oversight over an inferior body; it does not
include any restraining authority over such body,"[8] we said.
In a more recent case, Drilon v. Lim,[9] the difference
between control and supervision was further
delineated. Officers in control lay down the rules in the
performance or accomplishment of an act. If these rules are
not followed, they may, in their discretion, order the act undone
or redone by their subordinates or even decide to do it
themselves. On the other hand, supervision does not cover
such authority. Supervising officials merely see to it that the
rules are followed, but they themselves do not lay down such
rules, nor do they have the discretion to modify or replace
them. If the rules are not observed, they may order the work
done or redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the act. They
have no discretion on this matter except to see to it that the
rules are followed.
Under our present system of government, executive
power is vested in the President.[10] The members of the
Cabinet and other executive officials are merely alter egos. As
such, they are subject to the power of control of the President,
at whose will and behest they can be removed from office; or
their actions and decisions changed, suspended or
reversed.[11] In contrast, the heads of political subdivisions are
elected by the people. Their sovereign powers emanate from
the electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the Presidents
supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By the
same token, the President may not withhold or alter any
authority or power given them by the Constitution and the law.
Extent of Local Autonomy
Hand in hand with the constitutional restraint on the
President's power over local governments is the state policy of
ensuring local autonomy.[12]
In Ganzon v. Court of Appeals,[13] we said that local
autonomy signified "a more responsive and accountable local
government structure instituted through a system of
decentralization."The grant of autonomy is intended to "break
up the monopoly of the national government over the affairs of
local governments, x x x not x x x to end the relation of
partnership and interdependence between the central
administration and local government units x x own sources of revenue in addition to their equitable share in
x." Paradoxically, local governments are still subject to
regulation, however limited, for the purpose of enhancing
self-government.[14]
Decentralization simply means the devolution of
national administration, not power, to local
governments. Local officials remain accountable to the
central government as the law may provide. [15] The difference
between decentralization of administration and that of power
was explained in detail in Limbona v. Mangelin[16] as follows:
"Now, autonomy is either decentralization of
administration or decentralization of power. There is
decentralization of administration when the central government
delegates administrative powers to political subdivisions in
order to broaden the base of government power and in the
process to make local governments 'more responsive and
accountable,'[17] and 'ensure their fullest development as self-
reliant communities and make them more effective partners in
the pursuit of national development and social progress.' [18] At
the same time, it relieves the central government of the burden
of managing local affairs and enables it to concentrate on
national concerns. The President exercises 'general
supervision'[19] over them, but only to 'ensure that local
affairs are administered according to law.'[20] He has no
control over their acts in the sense that he can substitute
their judgments with his own.[21]
Decentralization of power, on the other hand, involves an
abdication of political power in the favor of local government
units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and
shape its future with minimum intervention from central
authorities. According to a constitutional author,
decentralization of power amounts to 'self-immolation,' since in
that event, the autonomous government becomes accountable
not to the central authorities but to its constituency." [22]
Under the Philippine concept of local autonomy, the
national government has not completely relinquished all its
powers over local governments, including autonomous
regions. Only administrative powers over local affairs are
delegated to political subdivisions. The purpose of the
delegation is to make governance more directly responsive
and effective at the local levels. In turn, economic, political and
social development at the smaller political units are expected
to propel social and economic growth and development. But to
enable the country to develop as a whole, the programs and
policies effected locally must be integrated and coordinated
towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. As we
stated in Magtajas v. Pryce Properties Corp., Inc., municipal
governments are still agents of the national government. [23]
The Nature of AO 372
Consistent with the foregoing jurisprudential precepts, let
us now look into the nature of AO 372. As its preambular
clauses declare, the Order was a "cash management
measure" adopted by the government "to match expenditures
with available resources," which were presumably depleted at
the time due to "economic difficulties brought about by the
peso depreciation." Because of a looming financial crisis, the
President deemed it necessary to "direct all government
agencies, state universities and colleges, government-owned
and controlled corporations as well as local governments to
reduce their total expenditures by at least 25 percent along
suggested areas mentioned in AO 372.
Under existing law, local government units, in addition
to having administrative autonomy in the exercise of their
functions, enjoy fiscal autonomy as well. Fiscal autonomy
means that local governments have the power to create their
the national taxes released by the national government, as well
as the power to allocate their resources in accordance with
their own priorities. It extends to the preparation of their
budgets, and local officials in turn have to work within the
constraints thereof. They are not formulated at the national
level and imposed on local governments, whether they are
relevant to local needs and resources or not. Hence, the
necessity of a balancing of viewpoints and the harmonization
of proposals from both local and national officials, [24] who in
any case are partners in the attainment of national goals.
Local fiscal autonomy does not however rule out any
manner of national government intervention by way of
supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals. Significantly, the
President, by constitutional fiat, is the head of the economic
and planning agency of the government, [25] primarily
responsible for formulating and implementing continuing,
coordinated and integrated social and economic policies, plans
and programs[26] for the entire country. However, under the
Constitution, the formulation and the implementation of such
policies and programs are subject to "consultations with the
appropriate public agencies, various private sectors, and local
government units." The President cannot do so unilaterally.
FINALS CONSTITUTION I ACJUCO 81
Consequently, the Local Government Code provides: [27]
"x x x [I]n the event the national government incurs an
unmanaged public sector deficit, the President of the
Philippines is hereby authorized, upon the recommendation of
[the] Secretary of Finance, Secretary of the Interior and Local
Government and Secretary of Budget and Management, and
subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the
necessary adjustments in the internal revenue allotment of
local government units but in no case shall the allotment be
less than thirty percent (30%) of the collection of national
internal revenue taxes of the third fiscal year preceding the
current fiscal year x x x."
There are therefore several requisites before the
President may interfere in local fiscal matters: (1) an
unmanaged public sector deficit of the national government;
(2) consultations with the presiding officers of the Senate and
the House of Representatives and the presidents of the
various local leagues; and (3) the corresponding
recommendation of the secretaries of the Department of
Finance, Interior and Local Government, and Budget and
Management. Furthermore, any adjustment in the allotment
shall in no case be less than thirty percent (30%) of the
collection of national internal revenue taxes of the third fiscal
year preceding the current one.
Petitioner points out that respondents failed to comply
with these requisites before the issuance and the
implementation of AO 372. At the very least, they did not even
try to show that the national government was suffering from an
unmanageable public sector deficit. Neither did they claim
having conducted consultations with the different leagues of
local governments.Without these requisites, the President has
no authority to adjust, much less to reduce, unilaterally the
LGU's internal revenue allotment.
The solicitor general insists, however, that AO 372 is
merely directory and has been issued by the President
consistent with his power of supervision over local
governments. It is intended only to advise all government
agencies and instrumentalities to undertake cost-reduction
measures that will help maintain economic stability in the
country, which is facing economic difficulties. Besides, it does
not contain any sanction in case of noncompliance. Being
merely an advisory, therefore, Section 1 of AO 372 is well
within the powers of the President. Since it is not a
mandatory imposition, the directive cannot be characterized as
an exercise of the power of control.
While the wordings of Section 1 of AO 372 have a rather
commanding tone, and while we agree with petitioner that the
requirements of Section 284 of the Local Government Code
have not been satisfied, we are prepared to accept the solicitor
general's assurance that the directive to "identify and
implement measures x x x that will reduce total
expenditures x x x by at least 25% of authorized regular
appropriation" is merely advisory in character, and does
not constitute a mandatory or binding order that interferes with
local autonomy. The language used, while authoritative, does
not amount to a command that emanates from a boss to a
subaltern.
Rather, the provision is merely an advisory to prevail
upon local executives to recognize the need for fiscal restraint
in a period of economic difficulty. Indeed, all concerned would
do well to heed the President's call to unity, solidarity and
teamwork to help alleviate the crisis. It is understood, however,
that no legal sanction may be imposed upon LGUs and their
officials who do not follow such advice. It is in this light that we
sustain the solicitor general's contention in regard to Section 1.
Withholding a Part of LGUs' IRA
Section 4 of AO 372 cannot, however, be upheld. A
basic feature of local fiscal autonomy is the automatic release
of the shares of LGUs in the national internal revenue. This is
mandated by no less than the Constitution. [28] The Local
Government Code[29] specifies further that the release shall be
made directly to the LGU concerned within five (5) days after
every quarter of the year and "shall not be subject to any lien
or holdback that may be imposed by the national government
for whatever purpose."[30] As a rule, the term "shall" is a word
of command that must be given a compulsory meaning.[31] The
provision is, therefore, imperative.
Section 4 of AO 372, however, orders the withholding,
effective January 1, 1998, of 10 percent of the LGUs' IRA
"pending the assessment and evaluation by the
Development Budget Coordinating Committee of the
emerging fiscal situation" in the country. Such withholding
clearly contravenes the Constitution and the law. Although
temporary, it is equivalent to a holdback, which means
"something held back or withheld, often temporarily." [32] Hence,
the "temporary" nature of the retention by the national
government does not matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an
advisory effected in times of national crisis, Section 4 thereof
has no color of validity at all. The latter provision effectively
encroaches on the fiscal autonomy of local
governments. Concededly, the President was well-
intentioned in issuing his Order to withhold the LGUs IRA, but
the rule of law requires that even the best intentions must be
carried out within the parameters of the Constitution and the
law. Verily, laudable purposes must be carried out by legal
methods.
Refutation of Justice Kapunan's Dissent
Mr. Justice Santiago M. Kapunan dissents from our
Decision on the grounds that, allegedly, (1) the Petition is
premature; (2) AO 372 falls within the powers of the President
as chief fiscal officer; and (3) the withholding of the LGUs IRA
is implied in the President's authority to adjust it in case of an
unmanageable public sector deficit.
First, on prematurity. According to the Dissent, when "the
conduct has not yet occurred and the challenged construction
has not yet been adopted by the agency charged with
administering the administrative order, the determination of the
scope and constitutionality of the executive action in advance
of its immediate adverse effect involves too remote and
abstract an inquiry for the proper exercise of judicial function."
This is a rather novel theory -- that people should await
the implementing evil to befall on them before they can
question acts that are illegal or unconstitutional. Be it
remembered that the real issue here is whether the
Constitution and the law are contravened by Section 4 of
AO 372, not whether they are violated by the acts
implementing it. In the unanimous en banc case Taada v.
Angara,[33] this Court held that when an act of the legislative
department is seriously alleged to have infringed the
Constitution, settling the controversy becomes the duty of this
Court. By the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt
act. Indeed, even a singular violation of the Constitution and/or
the law is enough to awaken judicial duty. Said the Court:
"In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. 'The question thus posed
is judicial rather than political. The duty (to adjudicate) remains
FINALS CONSTITUTION I ACJUCO 82

to assure that the supremacy of the Constitution is
upheld.'[34] Once a 'controversy as to the application or
interpretation of a constitutional provision is raised before this
Court x x x , it becomes a legal issue which the Court is bound
by constitutional mandate to decide.' [35]
xxxxxxxxx
"As this Court has repeatedly and firmly emphasized in many
cases,[36] it will not shirk, digress from or abandon its sacred
duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency,
instrumentality or department of the government."
In the same vein, the Court also held in Tatad v.
Secretary of the Department of Energy:[37]
"x x x Judicial power includes not only the duty of the courts to
settle actual controversies involving rights which are legally
demandable and enforceable, but also the duty to determine
whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. The courts, as
guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where
the statute violates the Constitution, it is not only the right but
the duty of the judiciary to declare such act unconstitutional
and void."
Notably, Justice Kapunan recognizes the need for
"interaction between the national government and the LGUs at
the planning level," in order to ensure that "local development
plans x x x hew to national policies and standards." The
problem is that no such interaction or consultation was
ever held prior to the issuance of AO 372. This is why the
petitioner and the intervenor (who was a provincial governor
and at the same time president of the League of Provinces of
the Philippines and chairman of the League of Leagues of
Local Governments) have protested and instituted this
action. Significantly, respondents do not deny the lack of
consultation.
In addition, Justice Kapunan cites Section 287[40] of the
LGC as impliedly authorizing the President to withhold the IRA
of an LGU, pending its compliance with certain
requirements.Even a cursory reading of the provision reveals
that it is totally inapplicable to the issue at bar. It directs LGUs
to appropriate in their annual budgets 20 percent of their
respective IRAs for development projects. It speaks of no
positive power granted the President to priorly withhold any
amount. Not at all.
WHEREFORE, the Petition is GRANTED. Respondents
and their successors are hereby
permanently PROHIBITED from implementing Administrative
Order Nos. 372 and 43, respectively dated December 27, 1997
and December 10, 1998, insofar as local government units are
concerned.

By the same token, when an act of the President, who in SO ORDERED.

our constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution and the
laws, as in the present case, settling the dispute becomes the
duty and the responsibility of the courts.
Besides, the issue that the Petition is premature has not
been raised by the parties; hence it is deemed
waived. Considerations of due process really prevents its use
against a party that has not been given sufficient notice of its
presentation, and thus has not been given the opportunity to
refute it.[38]
Second, on the President's power as chief fiscal officer of the
country. Justice Kapunan posits that Section 4 of AO 372
conforms with the President's role as chief fiscal officer, who
allegedly "is clothed by law with certain powers to ensure the
observance of safeguards and auditing requirements, as well
as the legal prerequisites in the release and use of IRAs, taking
into account the constitutional and statutory mandates." [39] He
cites instances when the President may lawfully intervene in
the fiscal affairs of LGUs.
Precisely, such powers referred to in the Dissent have
specifically been authorized by law and have not been
challenged as violative of the Constitution. On the other hand,
Section 4 of AO 372, as explained earlier, contravenes explicit
provisions of the Local Government Code (LGC) and the
Constitution. In other words, the acts alluded to in the Dissent
are indeed authorized by law; but, quite the opposite, Section
4 of AO 372 is bereft of any legal or constitutional basis.
Third, on the President's authority to adjust the IRA of
LGUs in case of an unmanageable public sector deficit. It must
be emphasized that in striking down Section 4 of AO 372, this
Court is not ruling out any form of reduction in the IRAs of
LGUs. Indeed, as the President may make necessary
adjustments in case of an unmanageable public sector deficit,
as stated in the main part of this Decision, and in line with
Section 284 of the LGC, which Justice Kapunan cites. He,
however, merely glances over a specific requirement in the
same provision -- that such reduction is subject to
consultation with the presiding officers of both Houses of
Congress and, more importantly, with the presidents of
the leagues of local governments.
FINALS CONSTITUTION I ACJUCO 83
[G.R. No. 130775. September 27, 2004]
THE NATIONAL LIGA NG MGA BARANGAY, represented
by ALEX L. DAVID in his capacity as National President
and for his own Person, President ALEX L.
DAVID, petitioners, vs. HON. VICTORIA ISABEL A.
PAREDES, Presiding Judge, Regional Trial Court, Branch
124, Caloocan City, and THE DEPARTMENT OF INTERIOR
and LOCAL GOVERNMENT, represented the HON.
SECRETARY ROBERT Z. BARBERS and MANUEL A.
RAYOS, respondents.
[G.R. No. 131939. September 27, 2004]
LEANDRO YANGOT, BONIFACIO LACWASAN and BONY
TACIO, petitioners, vs. DILG Secretary ROBERT Z.
BARBERS and DILG Undersecretary MANUEL
SANCHEZ, respondents.
DECISION
Tinga, J.:
At bottom, the present petition inquires into the essential
nature of the Liga ng mga Barangay and questions the extent
of the power of Secretary of the Department of Interior and
Local Government (DILG), as alter ego of the President. More
immediately, the petition disputes the validity of the
appointment of the DILG as the interim caretaker of the Liga
ng mga Barangay.
On 11 June 1997, private respondent Manuel A. Rayos
[as petitioner therein], Punong Barangay of Barangay 52,
District II, Zone 5, District II, Caloocan City, filed a petition for
prohibition and mandamus, with prayer for a writ of preliminary
injunction and/or temporary restraining order and damages
before the Regional Trial Court (RTC) of Caloocan, [1] alleging
that respondent therein Alex L. David [now petitioner], Punong
Barangay of Barangay 77, Zone 7, Caloocan City and then
president of the Liga Chapter of Caloocan City and of the Liga
ng mga Barangay National Chapter, committed certain
irregularities in the notice, venue and conduct of the proposed
synchronized Liga ng mga Barangay elections in
1997. According to the petition, the irregularities consisted of
the following: (1) the publication of the notice in the Manila
Bulletin but without notifying in writing the individual punong
barangays of Caloocan City;[2](2) the Notice of Meeting dated
08 June 1997 for the Liga Chapter of Caloocan City did not
specify whether the meeting scheduled on 14 June 1997 was
to be held at 8:00 a.m. or 8:00 p.m., and worse, the meeting
was to be held in Lingayen, Pangasinan; [3] and (3) the deadline
for the filing of the Certificates of Candidacy having been set
at 5:00 p.m. of the third day prior to the above election day, or
on 11 June 1997,[4] Rayos failed to meet said deadline since
he was not able to obtain a certified true copy of the COMELEC
Certificate of Canvas and Proclamation of Winning Candidate,
which were needed to be a delegate, to vote and be voted for
in the Liga election. On 13 June 1997, the Executive Judge
issued a temporary restraining order (TRO), effective for
seventy-two (72) hours, enjoining the holding of the general
membership and election meeting of Liga Chapter
of Caloocan City on 14 June 1975.[5]
However, the TRO was allegedly not properly served on
herein petitioner David, and so the election for the officers of
the Liga-Caloocan was held as scheduled.[6] Petitioner David
was proclaimed President of the Liga-Caloocan, and thereafter
took his oath and assumed the position of ex-officio member of
the Sangguniang Panlungsod of Caloocan.
On 17 July 1997, respondent Rayos filed a second
petition, this time for quo warranto, mandamus and prohibition,
with prayer for a writ of preliminary injunction and/or temporary
restraining order and damages, against David, Nancy Quimpo,
Presiding Officer of the Sangguniang
Panlungsod of Caloocan City, and Secretary Barbers.[7] Rayos
alleged that he was elected President of the Liga Caloocan
Chapter in the elections held on 14 June 1997 by the members
of the Caloocan Chapter pursuant to their Resolution/Petition
No. 001-97.[8] On 18 July 1997, the presiding judge granted the
TRO, enjoining therein respondents David, Quimpo and
Secretary Barbers from proceeding with the synchronized
elections for the Provincial and Metropolitan Chapters of
the Liga scheduled on 19 July 1997, but only for the purpose
of maintaining the status quo and effective for a period not
exceeding seventy-two (72) hours.[9]
Eventually, on 18 July 1997, at petitioner Davids
instance, Special Civil Action (SCA) No. C-512 pending before
Branch 126 was consolidated with SCA No. C-508 pending
before Branch 124.[10]
Before the consolidation of the cases, on 25 July 1997,
the DILG through respondent Secretary Barbers, filed in
SCA No. C-512 an Urgent Motion,[11] invoking the Presidents
power of general supervision over all local government units
and seeking the following reliefs:
WHEREFORE, in the interest of the much-needed delivery of
basic services to the people, the maintenance of public order
and to further protect the interests of the forty-one thousand
barangays all over the country, herein respondent respectfully
prays:
a) That the Department of the Interior and Local
Government (DILG), pursuant to its delegated
power of general supervision, be appointed as
the Interim Caretaker to manage and
administer the affairs of the Liga, until such
time that the new set of National Liga Officers
shall have been duly elected and assumed
office; ...[12]
The prayer for injunctive reliefs was anchored on the
following grounds: (1) the DILG Secretary exercises the power
of general supervision over all government units by virtue of
Administrative Order No. 267 dated 18 February 1992; (2) the
Liga ng mga Barangay is a government organization; (3) undue
interference by some local elective officials during the
Municipal and City Chapter elections of the Liga ng mga
Barangay; (4) improper issuance of confirmations of the
elected Liga Chapter officers by petitioner David and the
National LigaBoard; (5) the need for the DILG to provide
remedies measured in view of the confusion and chaos
sweeping the Liga ng mga Barangay and the incapacity of the
National Liga Board to address the problems properly.
On 31 July 1997, petitioner David opposed the
DILGs Urgent Motion, claiming that the DILG, being a
respondent in the case, is not allowed to seek any sanction
against a co-respondent like David, such as by filing a cross-
claim, without first seeking leave of court. [13] He also alleged
that the DILGs request to be appointed interim caretaker
constitutes undue interference in the internal affairs of
the Liga, since the Liga is not subject to DILG control and
supervision.[14]
Three (3) days after filing its Urgent Motion, on 28 July
1997, and before it was acted upon by the lower court, the
DILG through then Undersecretary Manuel Sanchez, issued
Memorandum Circular No. 97-176.[15] It cited the reported
violations of the Liga ng mga Barangay Constitution and By-
Laws by David and widespread chaos and confusion among
local government officials as to who were the qualified ex-
officio Liga members in their
respective sangunians.[16] Pending the appointment of the
DILG as the Interim Caretaker of the Liga ng mga Barangay by
FINALS CONSTITUTION I ACJUCO 84
the court and until the officers and board members of the
national Liga Chapter have been elected and have assumed
office, the Memorandum Circular directed all provincial
governors, vice governors, city mayors, city vice mayors,
members of the sangguniang panlalawigan and panlungsod,
DILG regional directors and other concerned officers, as
follows:
1. All concerned are directed not to recognize and/or honor any
Liga Presidents of the Provincial and Metropolitan Chapters as
ex-officio members of the sanggunian concerned until further
notice from the Courts or this Department;
2. All concerned are directed to disregard any pronouncement
and/or directive issued by Mr. Alex David on any issue or
matter relating to the affairs of the Liga ng mga Barangay until
further notice from the Courts or this Department. [17]
On 04 August 1997, public respondent Judge Victoria
Isabel A. Paredes issued the assailed order, [18] the pertinent
portions of which read, thus:
The authority of the DILG to exercise general supervisory
jurisdiction over local government units, including the different
leagues created under the Local Government Code of 1991
(RA 7160) finds basis in Administrative Order No. 267 dated
February 18, 1992. Specifically, Section 1 (a) of the said
Administrative Order provides a broad premise for the
supervisory power of the DILG. Administratively, the DILGs
supervision has been tacitly recognized by the local
barangays, municipalities, cities and provinces as shown by
the evidences presented by respondent David himself (See
Annexes A to C). The fact that the DILG has sought to refer the
matters therein to the National Liga Board/Directorate does
not ipso facto mean that it has lost jurisdiction to act directly
therein. Jurisdiction is conferred by law and cannot be claimed
or lost through agreements or inaction by individuals. What
respondent David may term as interference should
caretakership be allowed, this Court would rather view as a
necessary and desirable corollary to the exercise of
supervision.[19]
Political motivations must not preclude, hamper, or obstruct the
delivery of basic services and the perquisites of public
service. In this case, the fact of confusion arising from
conflicting appointments, non-action, and uninformed or
wavering decisions of the incumbent National Liga
Board/Directorate, having been satisfactorily established,
cannot simply be brushed aside as being politically motivated
or arising therefrom. It is incumbent, therefore, that the DILG
exercise a more active role in the supervision of the affairs and
operations of the National Liga Board/ Directorate at least until
such time that the regular National Liga Board/Directorate may
have been elected, qualified and assumed office. [20]
xxx
WHEREFORE, premises considered, the Urgent Motion of the
DILG for appointment as interim caretaker, until such time that
the regularly elected National Liga Board of Directors shall
have qualified and assumed office, to manage and administer
the affairs of the National Liga Board, is hereby GRANTED. [21]
On 11 August 1997, petitioner David filed an urgent
motion for the reconsideration of the assailed order and to
declare respondent Secretary Barbers in contempt of
Court.[22] David claimed that the 04 August 1997 order divested
the duly elected members of the Board of Directors of
the Liga National Directorate of their positions without due
process of law. He also wanted Secretary Barbers declared in
contempt for having issued, through his Undersecretary,
Memorandum Circular No. 97-176, even before respondent
judge issued the questioned order, in mockery of the justice
system. He implied that Secretary Barbers knew about
respondent judges questioned order even before it was
promulgated.[23]
On 11 August 1997, the DILG issued Memorandum
Circular No. 97-193,[24] providing supplemental guidelines for
the 1997 synchronized elections of the provincial and
metropolitan chapters and for the election of the national
chapter of the Liga ng mga Barangay. The Memorandum
Circular set the synchronized elections for the provincial and
metropolitan chapters on 23 August 1997 and for the national
chapter on 06 September 1997.
On 12 August 1997, the DILG issued a Certificate of
Appointment[25] in favor of respondent Rayos as president
of the Liga ng mga Barangay of Caloocan City. The
appointment purportedly served as Rayos’ legal basis for ex-
officio membership in the Sangguniang
Panlungsod of Caloocan City and to qualify and participate in
the forthcoming National Chapter Election of the Liga ng mga
Barangay.[26]
On 23 August 1997, the DILG conducted the
synchronized elections of Provincial and
Metropolitan Liga Chapters. Thereafter, on 06 September
1997, the National Liga Chapter held its election of officers and
board of directors, wherein James Marty L. Lim was elected as
President of the National Liga.[27]
On 01 October 1997, public respondent judge denied
Davids motion for reconsideration,[28] ruling that there was no
factual or legal basis to reconsider the appointment of the DILG
as interim caretaker of the National Liga Board and to cite
Secretary Barbers in contempt of court.[29]
On 10 October 1997, petitioners filed the instant Petition
for Certiorari[30] under Rule 65 of the Rules of Court, seeking to
annul public respondent judges orders of 04 August 1997 and
01 October 1997. They dispute the latters opinion on the power
of supervision of the President under the Constitution, through
the DILG over local governments, which is the same as that of
the DILGs as shown by its application of the power on the Liga
ng mga Barangay. Specifically, they claim that the public
respondent judges’ designation of the DILG as interim
caretaker and the acts which the DILG sought to
implement pursuant to its designation as such are beyond
the scope of the Chief Executives power of supervision.
To support the petition, petitioners argue that under
Administrative Order No. 267, Series of 1992, the power of
general supervision of the President over local government
units does not apply to the Liga and its various chapters
precisely because the Liga is not a local government unit,
contrary to the stance of the respondents. [31]
Section 507 of the Local Government Code (Republic Act
No. 7160)[32] provides that the Liga shall be governed by its
own Constitution and By-laws. Petitioners posit that the duly
elected officers and directors of the National Liga elected in
1994 had a vested right to their positions and could only be
removed therefrom for cause by affirmative vote of two-thirds
(2/3) of the entire membership pursuant to
the Liga Constitution and By-Laws, and not by mere issuances
of the DILG, even if bolstered by the dubious authorization of
respondent judge.[33] Thus, petitioners claim that the
questioned order divested the then incumbent officers and
directors of the Liga of their right to their respective offices
without due process of law.
Assuming the Liga could be subsumed under the term
local governments, over which the President, through the DILG
FINALS CONSTITUTION I ACJUCO 85
Secretary, has the power of supervision, [34] petitioners point
out that still there is no legal or constitutional basis for the
appointment of the DILG as interim caretaker. [35] They stress
that the actions contemplated by the DILG as interim caretaker
go beyond supervision, as what it had sought and obtained
was authority to alter, modify, nullify or set aside the actions of
the Liga Board of Directors and even to substitute its judgment
over that of the latter which are all clearly one of
control.[36] Petitioners question the appointment of Rayos
as Liga-Caloocan President since at that time petitioner David
was occupying that position which was still the subject of the
quo warranto proceedings Rayos himself had
instituted.[37] Petitioners likewise claim that DILG
Memorandum Circular No. 97-193, providing supplemental
guidelines for the synchronized elections of the Liga, replaced
the implementing rules adopted by the Liga pursuant to its
Constitution and By-laws.[38] In fact, even before its
appointment as interim caretaker, DILG specifically enjoined
all heads of government units from recognizing petitioner
David and/or honoring any of his pronouncements relating to
the Liga.[39]
Petitioners rely on decision in Taule v. Santos,[40] which,
they claim, already passed upon the extent of authority of the
then Secretary of Local Government over the katipunan ng
mga barangay or the barangay councils, as it specifically ruled
that the Secretary [of Local Government] has no authority to
pass upon the validity or regularity of the election of officers of
the katipunan.[41]
For his part, respondent Rayos avers that since the
Secretary of the DILG supervises the acts of local officials by
ensuring that they act within the scope of their prescribed
powers and functions and since members of the various
leagues, such as the Liga in this case, are themselves officials
of local government units, it follows that the Liga members
are subject to the power of supervision of the DILG.[42] He
adds that as the DILGs management and administration of
the Liga affairs was limited only to the conduct of the elections,
its actions were consistent with its rule-making power and
power of supervision under existing laws. [43] He asserts that in
assailing the appointment of the DILG as interim
caretaker, petitioners failed to cite any provision of positive law
in support of their stance. Thus, he adds, if a law is silent,
obscure or insufficient, a judge may apply a rule he sees fit to
resolve the issue, as long as the rule chosen is in harmony with
general interest, order, morals and public policy, [44] in
consonance with Article 9 of the Civil Code. [45]
On the other hand, it is quite significant that the Solicitor
General has shared petitioners’ position. He states that the
DILGs act of managing and administering the affairs of the
National Liga Board are not merely acts of supervision but
plain manifestations of control and direct takeover of the
functions of the National Liga Board,[46] going beyond the limits
of the power of general supervision of the President over local
governments.[47] Moreover, while the Liga may be deemed a
government organization, it is not strictly a local government
unit over which the DILG has supervisory power. [48]
Meanwhile, on 24 September 1998, James Marty L. Lim,
the newly elected President of the National Liga, filed a Motion
for Leave to File Comment in Intervention,[49] with
his Comment in Intervention attached,[50] invoking the validity
of the DILGs actions relative to the conduct of
the Liga elections.[51] In addition, he sought the dismissal of the
instant petition on the following grounds: (1) the issue of validity
or invalidity of the questioned order has been rendered moot
and academic by the election of Liga officers; (2) the turn-over
of the administration and management of Liga affairs to
the Liga officers; and (3) the recognition and acceptance by
the members of the Liga nationwide.[52]
In the interim, another petition, this time for Prohibition
with Prayer for a Temporary Restraining Order, [53] was filed by
several presidents of Liga Chapters, praying that this Court
declare the DILG Secretary and Undersecretary are not vested
with any constitutional or legal power to exercise control or
even supervision over the National Liga ng mga Barangay, nor
to take over the functions of its officers or suspend its
constitution; and declare void any and all acts committed by
respondents therein in connection with their caretakership of
the Liga.[54] The petition was consolidated with G.R. No.
130775, but it was eventually dismissed because the
petitioners failed to submit an affidavit of service and proof of
service of the petition.[55]
Meanwhile, on 01 December 1998, petitioner David died
and was substituted by his legal representatives. [56]
ISSUES:
Petitioners have raised a number of issues.[57] Integrated
and simplified, these issues boil down to the question of
whether or not respondent Judge acted with grave abuse
of discretion in appointing the DILG as interim caretaker
to administer and manage the affairs of the
National Liga Board, per its order dated 04 August 1997.[58] In
turn, the resolution of the question of grave abuse of discretion
entails a couple of definitive issues, namely: (1) whether
the Liga ng mga Barangay is a government organization that
is subject to the DILG Secretarys power of supervision over
local governments as the alter ego of the President, and (2)
whether the respondent Judges designation of the DILG as
interim caretaker of the Liga has invested the DILG with control
over the Liga and whether DILG Memorandum Circular No.
97-176, issued before it was designated as
such interim caretaker, and DILG Memorandum Circular No.
97-193 and other acts which the DILG made in its capacity as
interim caretaker of the Liga, involve supervision or control of
the Liga.
However, the Court should first address the question of
mootness which intervenor Lim raised because, according to
him, during the pendency of the present petition a general
election was held; the new set of officers and directors had
assumed their positions; and that supervening events the DILG
had turned-over the management and administration of
the Liga to new Liga officers and directors.[59] Respondent
Rayos has joined him in this regard. [60] Forthwith, the Court
declares that these supervening events have not rendered the
instant petition moot, nor removed it from the jurisdiction of this
Court.
This case transcends the elections ordered and
conducted by the DILG as interim caretaker of the Liga and
the Liga officers and directors who were elected to replace
petitioner David and the former officers. At the core of the
petition is the validity of the DILGs caretakership of
the Liga and the official acts of the DILG as such caretaker
which exceeded the bounds of supervision and were exercise
of control. At stake in this case is the realization of the
constitutionally ensconced principle of local government
autonomy;[61] the statutory objective to enhance the
capabilities of barangays and municipalities by providing them
opportunities to participate actively in the implementation of
national programs and projects;[62] and the promotion of the
avowed aim to ensure the independence and non-partisanship
of the Liga ng mga Barangay. The mantle of local autonomy
would be eviscerated and remain an empty buzzword if
unconstitutional, illegal and unwarranted intrusions in the
affairs of the local governments are tolerated and left
unchecked.
FINALS CONSTITUTION I ACJUCO 86
Indeed, it is the declared policy of the State that its
territorial and political subdivisions should enjoy genuine
meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more
effective partners in the attainment of national goals. [63] In the
case of De Leon v. Esguerra,[64] the Court ruled that even
barangays are meant to possess genuine and meaningful
local autonomy so that they may develop fully as self-
reliant communities.[65]
Furthermore, well-entrenched is the rule that courts will
decide a question otherwise moot and academic if it is capable
of repetition, yet evading review.[66] For the question of whether
the DILG may validly be appointed as interim caretaker, or
assume a similar position and perform acts pursuant thereto,
is likely to resurrect again, and yet the question may not be
decided before the actual assumption, or the termination of
said assumption even.
So too, dismissing the petition on the ground of mootness
could lead to the wrong impression that the challenged order
and issuances are valid. Verily, that does not appear to be the
correct conclusion to make since by applying opposite
precedents to the issues the outcome points to invalidating the
assailed order and memorandum circulars.
The resolution of the issues of whether the Liga ng mga
Barangay is subject to DILG supervision, and whether the
questioned caretakership order of the respondent judge
and the challenged issuances and acts of the DILG
constitute control in derogation of the Constitution,
necessitates a brief overview of the barangay, as the lowest
LGU, and the Liga, as a vehicle of governance and
coordination.
As the basic political unit, the barangay serves as the
primary planning and implementing unit of government
policies, plans, programs, projects and activities in the
community, and as a forum wherein the collective views of the
people may be expressed, crystallized and considered, and
where disputes may be amicably settled.[67]
On the other hand, the Liga ng mga Barangay[68] is the
organization of all barangays, the primary purpose of which is
the determination of the representation of the Liga in
the sanggunians, and the ventilation, articulation, and
crystallization of issues affecting barangay government
administration and securing solutions thereto, through proper
and legal means.[69]The Liga ng mga Barangay shall have
chapters at the municipal, city and provincial and metropolitan
political subdivision levels.[70] The municipal and city chapters
of the Liga are composed of the barangay representatives
from the municipality or city concerned. The presidents of the
municipal and city chapters of the Liga form the provincial or
metropolitan political subdivision chapters of the Liga. The
presidents of the chapters of the Liga in highly urbanized cities,
provinces and the Metro Manila area and other metropolitan
political subdivisions constitute the National Liga ng mga
Barangay.[71]
As conceptualized in the Local Government Code,
the barangay is positioned to influence and direct the
development of the entire country. This was heralded by the
adoption of the bottom-to-top approach process of
development which requires the development plans of
the barangay to be considered in the development plans of the
municipality, city or province,[72]whose plans in turn are to be
taken into account by the central government[73] in its plans for
the development of the entire country. [74] The Liga is the
vehicle assigned to make this new development approach
materialize and produce results.
The presidents of the Liga at the municipal, city and
provincial levels, automatically become ex-officio members of
the Sangguniang Bayan, Sangguniang
Panlungsod and SangguniangPanlalawigan, respectively. Th
ey shall serve as such only during their term of office as
presidents of the Liga chapters, which in no case shall be
beyond the term of office of the sanggunianconcerned.[75]
The Liga ng mga Barangay has one principal aim,
namely: to promote the development of barangays and secure
the general welfare of their inhabitants. [76] In line with this,
the Liga is granted the following functions and duties:
a) Give priority to programs designed for the total
development of the barangays and in
consonance with the policies, programs and
projects of the national government;
b) Assist in the education of barangay residents for
people’s participation in local government
administration in order to promote untied and
concerted action to achieve country-wide
development goals;
c) Supplement the efforts of government in creating
gainful employment within the barangay;
d) Adopt measures to promote the welfare of
barangay officials;
e) Serve as forum of the barangays in order to
forge linkages with government and non-
governmental organizations and thereby
promote the social, economic and political well-
being of the barangays; and
f) Exercise such other powers and perform such
other duties and functions which will bring
about stronger ties between barangays and
promote the welfare of the barangay
inhabitants.[77]
The Ligas are primarily governed by the provisions
of the Local Government Code. However, they are
empowered to make their own constitution and by-laws to
govern their operations. Sec. 507 of the Code provides:
Sec. 507. Constitution and By-Laws of the Liga and the
Leagues. - All other matters not herein otherwise provided for
affecting the internal organization of the leagues of local
government units shall be governed by their respective
constitution and by-laws which are hereby made suppletory to
the provision of this Chapter: Provided, That said Constitution
and By-laws shall always conform to the provision of the
Constitution and existing laws.
Pursuant to the Local Government Code, the Liga ng
mga Barangay adopted its own Constitution and By-
Laws. It provides that the corporate powers of
the Liga, expressed or implied, shall be vested in the board of
directors of each level of the Liga which shall:
a) Have jurisdiction over all officers, directors and committees
of the said Liga; including the power of appointment,
assignment and delegation;
b) Have general management of the business, property, and
funds of said Liga;
FINALS CONSTITUTION I ACJUCO 87
c) Prepare and approve a budget showing anticipated receipts
and expenditures for the year, including the plans or schemes
for funding purposes; and
d) Have the power to suspend or remove from office any officer
or member of the said board on grounds cited and in the
manner provided in hereinunder provisions. [78]
The National Liga Board of Directors promulgated the
rules for the conduct of its Ligas general elections.[79] And, as
early as 28 April 1997, the Liga National Chapter had already
scheduled its general elections on 14 June 1997. [80]
The controlling provision on the issues at hand is Section
4, Article X of the Constitution, which reads in part:
Sec. 4 The President of the Philippines shall exercise general
supervision over local governments.
The 1935, 1973 and 1987 Constitutions uniformly
differentiate the Presidents power of supervision over local
governments and his power of control of the executive
departments bureaus and offices.[81] Similar to the counterpart
provisions in the earlier Constitutions, the provision in the 1987
Constitution provision has been interpreted to exclude the
power of control.[82]
In the early case of Mondano v. Silvosa, et
al.,[83] this Court defined supervision as overseeing, or the
power or authority of an officer to see that subordinate officers
perform their duties, and to take such action as prescribed by
law to compel his subordinates to perform their duties. Control,
on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the
judgment of the former for that of the latter.[84] In Taule v.
Santos,[85] the Court held that the Constitution permits the
President to wield no more authority than that of checking
whether a local government or its officers perform their duties
as provided by statutory enactments.[86]Supervisory power,
when contrasted with control, is the power of mere oversight
over an inferior body; it does not include any restraining
authority over such body.[87]
The case of Drilon v. Lim[88] clearly defined the extent of
supervisory power, thus:
The supervisor or superintendent merely sees to it that the
rules are followed, but he himself does not lay down such rules,
nor does he have the discretion to modify or replace them. If
the rules are not observed, he may order the work done or re-
done but only to conform to the prescribed rules. He may not
prescribe his own manner for the doing of the act. He has no
judgment on this matter except to see that the rules are
followed[89]
In Section 4, Article X of the Constitution applicable to
the Liga ng mga Barangay? Otherwise put, is the Liga legally
susceptible to DILG suspension?
This question was resolved in Bito-Onon v.
Fernandez,[90] where the Court ruled that the Presidents power
of the general supervision, as exercised therein by the DILG
Secretary as his alter ego, extends to the Liga ng mga
Barangay.
Does the Presidents power of general supervision extend
to the liga ng mga barangay, which is not a local
government unit?
We rule in the affirmative. In Opinion No. 41, Series of 1995,
the Department of Justice ruled that the liga ng mga
barangay is a government organization, being an
association, federation, league or union created by law or
by authority of law, whose members are either appointed
or elected government officials. The Local Government
Code defines the liga ng mga barangay as an organization of
all barangays for the primary purpose of determining the
representation of the liga in the sanggunians, and for
ventilating, articulating and crystallizing issues affecting
barangay government administration and securing, through
proper and legal means, solutions thereto. [91]
The rationale for making the Liga subject to DILG
supervision is quite evident, whether from the perspectives of
logic or of practicality. The Liga is an aggroupment
of barangays which are in turn represented therein by their
respective punong barangays. The representatives of
the Liga sit in an ex officio capacity at the municipal, city and
provincial sanggunians. As such, they enjoy all the powers
and discharge all the functions of regular municipal
councilors, city councilors or provincial board members,
as the case may be. Thus, the Liga is the vehicle through
which the barangay participates in the enactment of
ordinances and formulation of policies at all the legislative
local levels higher than the sangguniang barangay, at the
same time serving as the mechanism for the bottom-to-top
approach of development.
In the case at bar, even before the respondent Judge
designated the DILG as interim caretaker of the Liga, on 28
July 1997, it issued Memorandum Circular No. 97-176,
directing local government officials not to recognize David as
the National Liga President and his pronouncements relating
to the affairs of the Liga. Not only was the action premature, it
even smacked of superciliousness and injudiciousness. The
DILG is the topmost government agency which maintains
coordination with, and exercises supervision over local
government units and its multi-level leagues. As such, it
should be forthright, circumspect and supportive in its
dealings with the Ligas especially the Liga ng mga
Barangay. The indispensable role played by the latter in the
development of the barangays and the promotion of the
welfare of the inhabitants thereof deserve no less than the full
support and respect of the other agencies of government. As
the Court held in the case of San Juan v. Civil Service
Commission,[92] our national officials should not only comply
with the constitutional provisions on local autonomy but should
also appreciate the spirit of liberty upon which these provisions
are based.[93]
When the respondent judge eventually appointed the
DILG as interim caretaker to manage and administer the affairs
of the Liga, she effectively removed the management from the
National Liga Board and vested control of the Liga on the
DILG. Even a cursory glance at the DILGs prayer for
appointment as interim caretaker of the Liga to manage and
administer the affairs of the Liga, until such time that the
new set of National Liga officers shall have been duly elected
and assumed office reveals that what the DILG wanted was to
take control over the Liga. Even if said caretakership was
contemplated to last for a limited time, or only until a new set
of officers assume office, the fact remains that it was a
conferment of control in derogation of the Constitution.
With his Department already appointed as interim
caretaker of the Liga, Secretary Barbers nullified the results of
the Liga elections and promulgated DILG Memorandum
Circular No. 97-193 dated 11 August 1997, where he laid down
the supplemental guidelines for the 1997 synchronized
elections of the provincial and metropolitan chapters and for
the election of the national chapter of the Liga ng mga
Barangay; scheduled dates for the new provincial,
FINALS CONSTITUTION I ACJUCO 88
metropolitan and national chapter elections; and appointed
respondent Rayos as president of Liga-Caloocan Chapter.
These acts of the DILG went beyond the sphere of
general supervision and constituted direct interference
with the political affairs, not only of the Liga, but more
importantly, of the barangay as an institution. The election
of Liga officers is part of the Ligas internal organization, for
which the latter has already provided guidelines. In
succession, the DILG assumed stewardship and jurisdiction
over the Liga affairs, issued supplemental guidelines for the
election, and nullified the effects of the Liga-conducted
elections. Clearly, what the DILG wielded was the power of
control which even the President does not have.
Furthermore, the DILG assumed control when it
appointed respondent Rayos as president of the Liga-
Caloocan Chapter prior to the newly scheduled
general Liga elections, although petitioner Davids term
had not yet expired. The DILG substituted its choice, who
was Rayos, over the choice of majority of the punong
barangay of Caloocan, who was the incumbent President,
petitioner David. The latter was elected and had in fact been
sitting as an ex-officio member of the sangguniang
panlungsod in accordance with the Liga Constitution and By-
Laws. Yet, the DILG extended the appointment to respondent
Rayos although it was aware that the position was the subject
of a quo warranto proceeding instituted by Rayos himself,
thereby preempting the outcome of that case. It was bad
enough that the DILG assumed the power of control, it was
worse when it made use of the power with evident bias and
partiality.
As the entity exercising supervision over the Liga ng mga
Barangay, the DILGs authority over the Liga is limited to
seeing to it that the rules are followed, but it cannot lay down
such rules itself, nor does it have the discretion to modify or
replace them. In this particular case, the most that the DILG
could do was review the acts of the incumbent officers of
the Liga in the conduct of the elections to determine if they
committed any violation of the Ligas Constitution and By-laws
and its implementing rules. If the National Liga Board and its
officers had violated Liga rules, the DILG should have ordered
the Liga to conduct another election in accordance with
the Ligas own rules, but not in obeisance to DILG-dictated
guidelines. Neither had the DILG the authority to remove the
incumbent officers of the Liga and replace them, even
temporarily, with unelected Liga officers.
Like the local government units, the Liga ng mga
Barangay is not subject to control by the Chief Executive
or his alter ego.
In the Bito-Onon[94] case, this Court held that DILG
Memorandum Circular No. 97-193, insofar as it authorized the
filing of a petition for review of the decision of the Board of
Election Supervisors (BES) with the regular courts in a post-
proclamation electoral protest, involved the exercise of control
as it in effect amended the guidelines already promulgated by
the Liga.The decision reads in part:
xxx. Officers in control, lay down the rules in the doing of an
act. If they are not followed, it is discretionary on his part to
order the act undone or redone by his subordinate or he may
even decide to do it himself. Supervision does not cover such
authority. Supervising officers merely see to it that the rules are
followed, but he himself does not lay down such rules, nor does
he have the discretion to modify or replace them. If the rules
are not observed, he may order the work done or re-done to
conform for to the prescribed rules. He cannot prescribe his
own manner the doing of the act.
xxx
xxx. The amendment of the GUIDELINES is more than an
exercise of the power of supervision but is an exercise of the
power of control, which the President does not have over the
LIGA. Although the DILG is given the power to prescribe rules,
regulations and other issuances, the Administrative Code limits
its authority to merely monitoring compliance by local
government units of such issuances. To monitor means to
watch, observe or check and is compatible with the power of
supervision of the DILG Secretary over local governments,
which is limited to checking whether the local government unit
concerned or the officers thereof perform their duties as per
statutory enactments. Besides, any doubt as to the power of
the DILG Secretary to interfere with local affairs should be
resolved in favor of the greater autonomy of the local
government.[95]
In Taule,[96] the Court ruled that the Secretary of Local
Government had no authority to pass upon the validity or
regularity of the election of officers of katipunan ng mga
barangay or barangay councils. In that case, a protest was
lodged before the Secretary of Local Government regarding
several irregularities in, and seeking the nullification of, the
election of officers of the Federation of Associations of
Barangay Councils (FABC) of Catanduanes. Then Local
Government Secretary Luis Santos issued a resolution
nullifying the election of officers and ordered a new one to be
conducted. The Court ruled:
Construing the constitutional limitation on the power of general
supervision of the President over local governments, we hold
that respondent Secretary has no authority to pass upon the
validity or regularity of the officers of the katipunan. To allow
respondent Secretary to do so will give him more power
than the law or the Constitution grants. It will in effect give
him control over local government officials for it will permit him
to interfere in a purely democratic and non-partisan activity
aimed at strengthening the barangay as the basic component
of local governments so that the ultimate goal of fullest
autonomy may be achieved. In fact, his order that the new
elections to be conducted be presided by the Regional Director
is a clear and direct interference by the Department with the
political affairs of the barangays which is not permitted by the
limitation of presidential power to general supervision over
local governments.[97]
All given, the Court is convinced that the assailed order
was issued with grave abuse of discretion while the acts
of the respondent Secretary, including DILG Memorandum
Circulars No. 97-176 and No. 97-193, are unconstitutional
and ultra vires, as they all entailed the conferment or
exercise of control a power which is denied by the
Constitution even to the President.
WHEREFORE, the Petition is GRANTED. The Order of
the Regional Trial Court dated 04 August 1997 is SET ASIDE
for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. DILG Memorandum
Circulars No. 97-176 and No. 97-193, are declared VOID for
being unconstitutional and ultra vires.
No pronouncements as to costs.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 89
[G.R. No. 131429. August 4, 1999]
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and
CLAUDIO L. DAYAON, petitioners, vs. EXECUTIVE
SECRETARY RUBEN TORRES, BUDGET SECRETARY
SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY
TEOFISTO GUINGONA, JR., and ATTY. CONRADO
QUIAOIT, respondents.
DECISION
VITUG, J.:
The validity and legality of the appointment of
respondent Conrado Quiaoit to the post of Provincial
Prosecutor of Tarlac by then President Fidel V. Ramos is
assailed in this petition for review on certiorari on a pure
question of law which prays for the reversal of the
Order,[1] dated 20 October 1997, of the Regional Trial Court
(Branch 63) of Tarlac, Tarlac, dismissing the petition for
prohibition and/or injunction and mandamus, with a prayer for
the issuance of a writ of injunction/temporary restraining order,
instituted by herein petitioners.
The occurrence of a vacancy in the Office of the
Provincial Prosecutor of Tarlac impelled the main contestants
in this case, petitioner Oscar Bermudez and respondent
Conrado Quiaoit, to take contrasting views on the proper
interpretation of a provision in the 1987 Revised Administrative
Code. Bermudez, the First Assistant Provincial Prosecutor
of Tarlac and Officer-In-Charge of the Office of the
Provincial Prosecutor, was a recommendee[2] of then
Justice Secretary Teofisto Guingona, Jr., for the position of
Provincial Prosecutor. Quiaoit, on the other hand, would
appear to have had the support of then Representative Jose
Yap of the Second Legislative District of Tarlac.[3] On 30
June 1997, Quiaoit emerged the victor when he was
appointed by President Ramos to the coveted office. Quiaoit
received a certified xerox copy of his appointment and, on 21
July 1997, took his oath of office before Executive Judge Angel
Parazo of the Regional Trial Court (Branch 65) of Tarlac,
Tarlac. On 23 July 1997, Quiaoit assumed office and
immediately informed the President, as well as the Secretary
of Justice and the Civil Service Commission, of that
assumption. Bermudez refused to vacate the Office of
Provincial Prosecutor claiming that the original copy of
Quiaoits appointment had not yet been released by the
Secretary of Justice.[4] Quiaoit, nonetheless, performed the
functions and duties of the Office of Provincial Prosecutor by
issuing office orders and memoranda, signing resolutions on
preliminary investigations, and filing several informations
before the courts. Quiaoit had since been regularly receiving
the salary, RATA and other emoluments of the office.
On 17 September 1997, Bermudez and Quiaoit were
summoned to Manila by Justice Secretary Guingona. The
three met at the Department of Justice and, following the
conference, Bermudez was ordered to wind up his cases until
15 October 1997 and to turn-over the contested office to
Quiaoit the next day.
In his First Indorsement, dated 22 September 1997, for
the Chief State prosecutor, Assistant Chief State Prosecutor
Nilo Mariano transmitted the original copy of Quiaoits
appointment to the Regional State Prosecutor Carlos de Leon,
Region III, at San Fernando, Pampanga. In turn, in his Second
Indorsement, dated 02 October 1997, Regional State
Prosecutor de Leon forwarded to Quiaoit said original copy of
his appointment. On the basis of the transmittal letter of
Regional State Prosecutor de Leon, Quiaoit, as directed, again
so assumed office on 16 October 1997. On even date,
Bermudez was detailed at the Office of the Regional State
Prosecutor, Region III, in San Fernando, Pampanga.
In the meantime, on 10 October 1997, Bermudez
together with his co-petitioners Arturo Llobrera and Claudio
Dayaon, the Second Assistant Provincial Prosecutor and the
Fourth Assistant Provincial Prosecutor of Tarlac, respectively,
filed with the Regional Trial Court of Tarlac, a petition for
prohibition and/or injunction, and mandamus, with a prayer for
the issuance of a writ of injunction/temporary restraining order,
against herein respondents, challenging the appointment of
Quiaoit primarily on the ground that the appointment lacks
the recommendation of the Secretary of Justice
prescribed under the Revised Administrative Code of
1987. After hearing, the trial court considered the petition
submitted for resolution and, in due time, issued its now
assailed order dismissing the petition. The subsequent move
by petitioners to have the order reconsidered met with a denial.
Hence, the instant recourse.
The core issue for consideration is whether or not the
absence of a recommendation of the Secretary of Justice
to the President can be held fatal to the appointment of
respondent Conrado Quiaoit. This question would, in turn,
pivot on the proper understanding of the provision of the
Revised Administrative Code of 1987 (Book IV, Title III,
Chapter II, Section 9) to the effect that-
All provincial and city prosecutors and their assistants shall be
appointed by the President upon the recommendation of the
Secretary.
Petitioners contend that an appointment of a provincial
prosecutor mandatorily requires a prior recommendation of the
Secretary of Justice endorsing the intended appointment
citing, by analogy, the case of San Juan vs. CSC[5] where the
Court held:
"x x x The DBM may appoint only from the list of qualified
recommendees nominated by the Governor. If none is
qualified, he must return the list of nominees to the Governor
explaining why no one meets the legal requirements and ask
for new recommendees who have the necessary eligibilities
and qualifications.
The Provincial Budget Officer (PBO) is expected to
synchronize his work with DBM.[6] (Emphasis supplied.)
Insisting on the application of San Juan, petitioners call
attention to the tenor of Executive Order No. 112[7] -
Section 1. All budget officers of provinces, cities and
municipalities shall be appointed henceforth by the Minister of
Budget and Management upon recommendation of the
local chief executive concernedx x x.
That, they claim, can be likened to the aforequoted provision
of the Revised Administrative Code of 1987. Respondents
argue differently.
The legislative intent is, of course, primordial. There is
no hard-and-fast rule in ascertaining whether the language in
a statute should be considered mandatory or directory, and the
application of a ruling in one particular instance may not
necessarily be apt in another[8] for each must be determined
on the basis of the specific law in issue and the peculiar
circumstances attendant to it. More often than not, the
problem, in the final analysis, is firmed up and addressed on a
case-to-case basis. The nature, structure and aim of the law
itself is often resorted to in looking at the legislative
intent. Generally, it is said that if no consequential rights or
liabilities depend on it and no injury can result from ignoring it,
and that the purpose of the legislature can be accomplished in
a manner other than that prescribed when substantially the
FINALS CONSTITUTION I ACJUCO 90

same results can be obtained, then the statute should be
regarded merely as directory, rather than as mandatory, in
character.[9]
An appointment to a public office is the unequivocal act
of designating or selecting by one having the authority therefor
of an individual to discharge and perform the duties and
functions of an office or trust.[10] The appointment is deemed
complete once the last act required of the appointing
authority has been complied with and its acceptance
thereafter by the appointee in order to render it
effective.[11]Appointment necessarily calls for an exercise of
discretion on the part of the appointing authority. [12] In
Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,[13] reiterated in Flores vs. Drilon,[14] this Court
has held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the
appointing power x x x[15]
Indeed, it may rightly be said that the right of choice is the
heart of the power to appoint.[16] In the exercise of the power
of appointment, discretion is an integral part thereof.
innocuous position involves the application of a most important
constitutional policy and principle, that of local autonomy. We
have to obey the clear mandate on local autonomy. Where a
law is capable of two interpretations, one in favor of
centralized power in Malacaang and the other beneficial to
local autonomy, the scales must be weighed in favor of
autonomy.
xxxxxxxxx
When the Civil Service Commission interpreted the
recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the
constitutional provisions on local autonomy.If the DBM
Secretary jealously hoards the entirety of budgetary powers
and ignores the right of local governments to develop self-
reliance and resoluteness in the handling of their own funds,
the goal of meaningful local autonomy is frustrated and set
back.[25]
The Court there has explained that the President merely
exercises general supervision over local government units and
local officials;[26] hence, in the appointment of a Provincial
Budget Officer, the executive department, through the
Secretary of Budget and Management, indeed had to
share the questioned power with the local government.

When the Constitution[17] or the law[18] clothes the In the instant case, the recommendation of the
President with the power to appoint a subordinate officer, such Secretary of Justice and the appointment of the President
conferment must be understood as necessarily carrying with it are acts of the Executive Department itself, and there is no
an ample discretion of whom to appoint. It should be here sharing of power to speak of, the latter being deemed for all
pertinent to state that the President is the head of intents and purposes as being merely an extension of the
government whose authority includes the power of personality of the President.
control over all executive departments, bureaus and WHEREFORE, the petition is DENIED. No costs.
offices. Control means the authority of an empowered officer
to alter or modify, or even nullify or set aside, what a SO ORDERED.
subordinate officer has done in the performance of his duties,
as well as to substitute the judgment of the latter, [19] as and
when the former deems it to be appropriate. Expressed in
another way, the President has the power to
assume directly the functions of an executive department,
bureau and office.[20] It can accordingly be inferred therefrom
that the President can interfere in the exercise of
discretion of officials under him or altogether ignore their
recommendations.[21]
It is the considered view of the Court, given the above
disquisition, that the phrase upon recommendation of the
Secretary, found in Section 9, Chapter II, Title III, Book IV, of
the Revised Administrative Code, should be interpreted, as it
is normally so understood, to be a mere advise,
exhortation or indorsement, which is essentially persuasive
in character and not binding or obligatory upon the party to
whom it is made.[22] The recommendation is here nothing
really more than advisory in nature.[23] The President, being
the head of the Executive Department, could very well
disregard or do away with the action of the departments,
bureaus or offices even in the exercise of discretionary
authority, and in so opting, he cannot be said as having acted
beyond the scope of his authority.
The doctrine in San Juan, relied upon by petitioners, is
tangential. While the tenor of the legal provision in Executive
Order No. 112 has some similarity with the provision in the
1987 Administrative Code in question, it is to be pointed out,
however, that San Juan,[24] in construing the law, has
distinctively given stress to the constitutional mandate on local
autonomy; thus:

The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the
Governor of the premier province of Rizal over a seemingly
FINALS CONSTITUTION I ACJUCO 91
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G.
ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER
OF THE BUREAU OF CUSTOMS, AND GUILLERMO
CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION
ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners, who
are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to
enjoin the respondent Salvador Mison from performing the
functions of the Office of Commissioner of the Bureau of
Customs and the respondent Guillermo Carague, as Secretary
of the Department of Budget, from effecting disbursements in
payment of Mison's salaries and emoluments, on the ground
that Mison's appointment as Commissioner of the Bureau
of Customs is unconstitutional by reason of its not having
been confirmed by the Commission on Appointments. The
respondents, on the other hand, maintain the constitutionality
of respondent Mison's appointment without the confirmation of
the Commission on Appointments.
Because of the demands of public interest, including the need
for stability in the public service, the Court resolved to give due
course to the petition and decide, setting aside the finer
procedural questions of whether prohibition is the proper
remedy to test respondent Mison's right to the Office of
Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court
allowed the Commission on Appointments to intervene and file
a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed
by intervenor's reply thereto. The parties were also heard in
oral argument on 8 December 1987.
This case assumes added significance because, at bottom
line, it involves a conflict between two (2) great departments of
government, the Executive and Legislative Departments. It
also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of
relatively clear provisions in the Constitution. In cases like this,
we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining
Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional
construction is to give effect to the intent of
the framers of the organic law and of the
people adopting it. The intention to which
force is to be given is that which is
embodied and expressed in the
constitutional provisions themselves.
The Court will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the
legislative department may want them construed, but in
accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts,
or in the heads of the departments, agencies, commissions or
boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective
only until disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.
It is readily apparent that under the provisions of the 1987
Constitution, just quoted, there are four (4) groups of officers
whom the President shall appoint. These four (4) groups, to
which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose
appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank 4 whose appointments the
Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the
consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and,
if the nomination is confirmed by the Commission on
Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present
bone of contention. Should they be appointed by the
President with or without the consent (confirmation) of the
Commission on Appointments? By following the accepted
rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions
expressly stated in the first group require the consent
(confirmation) of the Commission on Appointments. But we
need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well
as to the records of the 1986 Constitutional Commission to
determine, with more accuracy, if not precision, the intention of
the framers of the 1987 Constitution and the people adopting
it, on whether the appointments by the President, under the
second, third and fourth groups, require the consent
(confirmation) of the Commission on Appointments. Again, in
this task, the following advice of Mr. Chief Justice J. Abad
Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a
constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior and
existing laws and with reference to them. "Courts are bound to
presume that the people adopting a constitution are familiar
FINALS CONSTITUTION I ACJUCO 92
with the previous and existing laws upon the subjects to which
its provisions relate, and upon which they express their
judgment and opinion in its adoption." (Barry vs. Truax 13 N.D.,
131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935
Constitution, it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to
appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the
heads of departments.
(4) The President shall havethe power to make appointments
during the recess of the Congress, but such appointments shall
be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on
Appointments, shall appoint ambassadors, other public
ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus
and offices, the officers of the Armed Forces of the Philippines
from the rank of Brigadier General or Commodore, and all
other officers of the government whose appointments are not
herein otherwise provided for, and those whom he may be
authorized by law to appoint. However, the Batasang
Pambansa may by law vest in the Prime Minister, members
of the Cabinet, the Executive Committee, Courts, Heads of
Agencies, Commissions, and Boards the power to appoint
inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential
appointments required the consent (confirmation) of the
Commission on Appointments. It is now a sad part of our
political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of
"horse-trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by
successive amendments, placed the absolute power of
appointment in the President with hardly any check on the
part of the legislature.
Given the above two (2) extremes, one, in the 1935
Constitution and the other, in the 1973 Constitution, it is not
difficult for the Court to state that the framers of the 1987
Constitution and the people adopting it, struck a "middle
ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of
appointments and leaving to the President, without such
confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group,
i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission
support this conclusion. The original text of Section 16,
Article VII, as proposed by the Committee on the Executive of
the 1986 Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent
of a Commission on Appointment, shall appoint the heads of
the executive departments and bureaus, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain and all other officers
of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by
law to appoint. The Congress may by law vest the appointment
of inferior officers in the President alone, in the courts, or in the
heads of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its
counterpart provision in the 1935 Constitution. When the
frames discussed on the floor of the Commission the proposed
text of Section 16, Article VII, a feeling was manifestly
expressed to make the power of the Commission on
Appointments over presidential appointments more limited
than that held by the Commission in the 1935 Constitution.
Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a
few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee this
morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the
Commission on Appointments be limited to the department
heads, ambassadors, generals and so on but not to the
levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there
were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement
of confirmation by the Commission on Appointments; and
(2) the exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The
records of the deliberations of the Constitutional Commission
show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on
page 7, Section 16, line 26 which is to delete the words "and
bureaus," and on line 28 of the same page, to change the
phrase 'colonel or naval captain to MAJOR GENERAL OR
REAR ADMIRAL. This last amendment which is co-authored
by Commissioner de Castro is to put a period (.) after the word
ADMIRAL, and on line 29 of the same page, start a new
sentence with: HE SHALL ALSO APPOINT, et cetera.
FINALS CONSTITUTION I ACJUCO 93
MR. REGALADO: May we have the amendments one by one.
The first proposed amendment is to delete the words "and
bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners,
what would be the justification of the proponent for such a
deletion?
MR. FOZ: The position of bureau director is actually quite low
in the executive department, and to require further confirmation
of presidential appointment of heads of bureaus would subject
them to political influence.
MR. REGALADO: The Commissioner's proposed amendment
by deletion also includes regional directors as distinguished
from merely staff directors, because the regional directors
have quite a plenitude of powers within the regions as
distinguished from staff directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the
supervisiopn of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner
Foz? The Commissioner proposed an amendment to delete
'and bureaus on Section 16. Who will then appoint the bureau
directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by
the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same
answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of
the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that
this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by
one. We will first vote on the deletion of the phrase 'and
bureaus on line 26, such that appointments of bureau directors
no longer need confirmation by the Commission on
Appointment.
Section 16, therefore, would read: 'The President shall
nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive
departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase
'and bureaus' on page 7, line 26? (Silence) The Chair hears
none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed
amendment on page 7, line 28. 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts
the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed
by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment
to his amendment, so that after "captain" we insert the
following words: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for
in the Constitution whose appointments are vested in the
President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in
Section 16 is not an exclusive list of those appointments which
constitutionally require confirmation of the Commission on
Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the
words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM
IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes
those officers which the Constitution does not require
confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the
modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment
of Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis
supplied).
It is, therefore, clear that appointments to the second and
third groups of officers can be made by the President
without the consent (confirmation) of the Commission on
Appointments.
FINALS CONSTITUTION I ACJUCO 94
It is contended by amicus curiae, Senator Neptali Gonzales,
that the second sentence of Sec. 16, Article VII reading-
He (the President) shall also appoint all other officers of the
Government whose appointments are not otherwise provided
for by law and those whom he may be authorized by law to
appoint . . . . (Emphasis supplied) with particular reference to
the word "also," implies that the President shall "in like manner"
appoint the officers mentioned in said second sentence.
In other words, the President shall appoint the officers
mentioned in said second sentence in the same manner as he
appoints officers mentioned in the first sentence, that is, by
nomination and with the consent (confirmation) of the
Commission on Appointments.
Amicus curiae's reliance on the word "also" in said
second sentence is not necessarily supportive of the
conclusion he arrives at. For, as the Solicitor General
argues, the word "also" could mean "in addition; as well;
besides, too" (Webster's International Dictionary, p. 62, 1981
edition) which meanings could, on the contrary, stress that the
word "also" in said second sentence means that the
President, in addition to nominating and, with the consent of
the Commission on Appointments, appointing the officers
enumerated in the first sentence, can appoint (without such
consent (confirmation) the officers mentioned in the second
sentence-
Rather than limit the area of consideration to the possible
meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by
the President and appointment by the President with the
consent of the Commission on Appointments, whereas, the
second sentence speaks only of appointment by the
President. And, this use of different language in two (2)
sentences proximate to each other underscores a difference in
message conveyed and perceptions established, in line with
Judge Learned Hand's observation that "words are not pebbles
in alien juxtaposition" but, more so, because the recorded
proceedings of the 1986 Constitutional Commission clearly
and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII
of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank,
compared to some officers whose appointments have to be
confirmed by the Commission on Appointments under the first
sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the
appointment of the Central Bank Governor requires no
confirmation by the Commission on Appointments, even if he
is higher in rank than a colonel in the Armed Forces of the
Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely
underscore the purposive intention and deliberate judgment of
the framers of the 1987 Constitution that, except as to those
officers whose appointments require the consent of the
Commission on Appointments by express mandate of the first
sentence in Sec. 16, Art. VII, appointments of other officers are
left to the President without need of confirmation by the
Commission on Appointments. This conclusion is inevitable, if
we are to presume, as we must, that the framers of the 1987
Constitution were knowledgeable of what they were doing and
of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive
or presidential in character. Limitations on or qualifications
of such power should be strictly construed against them. Such
limitations or qualifications must be clearly stated in order to be
recognized. But, it is only in the first sentence of Sec. 16, Art.
VII where it is clearly stated that appointments by the President
to the positions therein enumerated require the consent of the
Commission on Appointments.
As to the fourth group of officers whom the President can
appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the
1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or boards.
[Emphasis supplied].
and argues that, since a law is needed to vest the appointment
of lower-ranked officers in the President alone, this implies
that, in the absence of such a law, lower-ranked officers have
to be appointed by the President subject to confirmation by the
Commission on Appointments; and, if this is so, as to lower-
ranked officers, it follows that higher-ranked officers should be
appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third
sentence of Sec. 16, Article VII, abovequoted, merely declares
that, as to lower-ranked officers, the Congress may by law vest
their appointment in the President, in the courts, or in the heads
of the various departments, agencies, commissions, or boards
in the government. No reason however is submitted for the use
of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the
considered opinion, after a careful study of the deliberations of
the 1986 Constitutional Commission, that the use of the word
alone" after the word "President" in said third sentence of Sec.
16, Article VII is, more than anything else, a slip or lapsus in
draftmanship. It will be recalled that, in the 1935 Constitution,
the following provision appears at the end of par. 3, section 1
0, Article VII thereof —
...; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the
heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears
immediately after the provision which makes practically all
presidential appointments subject to confirmation by the
Commission on Appointments, thus-
3. The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank
of captain or commander, and all other officers of the
Government whose appointments are not herein provided for,
and those whom he may be authorized by law to appoint;...
In other words, since the 1935 Constitution subjects, as a
general rule, presidential appointments to confirmation by the
Commission on Appointments, the same 1935 Constitution
saw fit, by way of an exception to such rule, to provide that
Congress may, however, by law vest the appointment of
inferior officers (equivalent to 11 officers lower in rank" referred
to in the 1987 Constitution) in the President alone, in the
courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude
FINALS CONSTITUTION I ACJUCO 95

presidential appointments from confirmation by the Commissioner of Customs shall be appointed by the
Commission on Appointments, except appointments to President of the Philippines (Emphasis supplied.)
offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
the third sentence of Sec. 16, Article VII the word "alone" after approved during the effectivity of the 1935 Constitution, under
the word "President" in providing that Congress may by law which the President may nominate and, with the consent of the
vest the appointment of lower-ranked officers in the President Commission on Appointments, appoint the heads of bureaus,
alone, or in the courts, or in the heads of departments, because like the Commissioner of the Bureau of Customs.
the power to appoint officers whom he (the President) may be
authorized by law to appoint is already vested in the
President, without need of confirmation by the After the effectivity of the 1987 Constitution, however, Rep. Act
Commission on Appointments, in the second sentence of No. 1937 and PD No. 34 have to be read in harmony with Sec.
the same Sec. 16, Article VII. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves
on the President, as an appointment he is authorizedby law to
Therefore, the third sentence of Sec. 16, Article VII could have make, such appointment, however, no longer needs the
stated merely that, in the case of lower-ranked officers, the confirmation of the Commission on Appointments.
Congress may by law vest their appointment in the President,
in the courts, or in the heads of various departments of the
government. In short, the word "alone" in the third Consequently, we rule that the President of the Philippines
sentence of Sec. 16, Article VII of the 1987 Constitution, as acted within her constitutional authority and power in
a literal import from the last part of par. 3, section 10, appointing respondent Salvador Mison, Commissioner of
Article VII of the 1935 Constitution, appears to be the Bureau of Customs, without submitting his
redundant in the light of the second sentence of Sec. 16, nomination to the Commission on Appointments for
Article VII. And, this redundancy cannot prevail over the clear confirmation. He is thus entitled to exercise the full authority
and positive intent of the framers of the 1987 Constitution that and functions of the office and to receive all the salaries and
presidential appointments, except those mentioned in the first emoluments pertaining thereto.
sentence of Sec. 16, Article VII, are not subject to confirmation
by the Commission on Appointments. WHEREFORE, the petition and petition in intervention should
be, as they are, hereby DISMISSED. Without costs.
Coming now to the immediate question before the Court, it is
evident that the position of Commissioner of the Bureau of SO ORDERED.
Customs (a bureau head) is not one of those within the
first group of appointments where the consent of the
Commission on Appointments is required. As a matter of
fact, as already pointed out, while the 1935 Constitution
includes "heads of bureaus" among those officers whose
appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand,
deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the
Commission on Appointments.

Moreover, the President is expressly authorized by law to

appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise
known as the Tariff and Customs Code of the Philippines,
which was enacted by the Congress of the Philippines on 22
June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs

shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as the
'Commissioner') and Assistant Commissioner of Customs, who
shall each receive an annual compensation in accordance with
the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper
department head.

Sec. 601 of Republic Act No. 1937, was amended on 27

October 1972 by Presidential Decree No. 34, amending the
Tariff and Customs Code of the Philippines. Sec. 601, as thus
amended, now reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The

Bureau of Customs shall have one chief and one assistant
chief, to be known respectively as the Commissioner
(hereinafter known as Commissioner) and Deputy
Commissioner of Customs, who shall each receive an annual
compensation in accordance with the rates prescribed by
existing law. The Commissioner and the Deputy
FINALS CONSTITUTION I ACJUCO 96
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL
AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO
R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio
R. Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs.
Mison, 1 would have settled the question of which
appointments by the President, under the 1987 Constitution,
are to be made with and without the review of the Commission
on Appointments. The Mison case was the first major case
under the 1987 Constitution and in construing Sec. 16, Art. VII
of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to
make appointments during the recess of
the Congress, whether voluntary or
compulsory, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the
1986 Constitutional Commission and the country's experience
under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec.
16, Art. VII are to be reviewed by the Commission on
Appointments, namely, "the heads of the executive
department, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in
him in this Constitution." All other appointments by the
President are to be made without the participation of the
Commission on Appointments. Accordingly, in the Mison case,
the appointment of therein respondent Salvador M. Mison as
head of the Bureau of Customs, without the confirmation of the
Commission on Appointments, was held valid and in
accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions.
So with the very provisions of Sec. 16, Art. VII as designed by
the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme
law of the land. And it cannot be over-stressed that the strength
of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the
officials of government, who are the subjects of its commands.
Barely a year after Mison, the Court is again confronted with a
similar question, this time, whether or not the appointment by
the President of the Chairman of the Commission on Human
Rights (CHR), an "independent office" created by the 1987
Constitution, is to be made with or without the confirmation of
the Commission on Appointments (CA, for brevity). Once
more, as in Mison, the Court will resolve the issue irrespective
of the parties involved in the litigation, mindful that what really
matters are the principles that will guide this Administration and
others in the years to come.
Since the position of Chairman of the Commission on Human
Rights is not among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of
the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the (CHR), is
to be made without the review or participation of the
Commission on Appointments.
To be more precise, the appointment of the Chairman and
Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the
Commission on Elections and the Commission on Audit,
whose appointments are expressly vested by the Constitution
in the President with the consent of the Commission on
Appointments. 2
The President appoints the Chairman and Members of the
Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the confirmation
of the Commission on Appointments because they are among
the officers of government "whom he (the President) may be
authorized by law to appoint." And Section 2(c), Executive
Order No. 163, 5 May 1987, authorizes the President to
appoint the Chairman and Members of the Commission on
Human Rights. It provides:
(c) The Chairman and the Members of the
Commission on Human Rights shall be
appointed by the President for a term of
seven years without reappointment.
Appointment to any vacancy shall be only
for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and,
therefore, irresistible. However, the presence in this case of
certain elements — absent in the Mison case — makes
necessary a closer scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the
Philippines designated herein petitioner Mary Concepcion
Bautista as "Acting Chairman, Commission on Human Rights."
The letter of designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING CHAIRMAN,
COMMISSION ON HUMAN RIGHTS, to succeed the late
Senator Jose W. Diokno and Justice J. B. L. Reyes.
Very truly HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and
members of the Commission on Human Rights, befitting an
independent office, as mandated by the Constitution, 4 the
FINALS CONSTITUTION I ACJUCO 97

President of the Philippines on 17 December 1988 extended had originally held merely in an acting capacity beginning 27
to petitioner Bautista a permanent appointment as Chairman August 1987.
of the Commission. The appointment letter is as follows:
On 9 January 1989, petitioner Bautista received a letter from
17 December 1988 the Secretary of the Commission on Appointments requesting
her to submit to the Commission certain information and
The Honorable documents as required by its rules in connection with the
confirmation of her appointment as Chairman of the
The Chairman
Commission on Human Rights Commission on Human Rights. 7 On 10 January 1989, the
Pasig, Metro Manila Commission on Appointments' Secretary again wrote
petitioner Bautista requesting her presence at a meeting of the
Commission on Appointments Committee on Justice, Judicial
M a d a m: and Bar Council and Human Rights set for 19 January 1989 at
9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I,
Pursuant to the provisions of existing laws, the following are Roxas Boulevard, Pasay City that would deliberate on her
hereby appointed to the positions indicated opposite their appointment as Chairman of the Commission on Human
respective names in the Commission on Human Rights: Rights. 8

MARY CONCEPCION BAUTISTA — Chairman On 13 January 1989, petitioner Bautista wrote to the Chairman
ABELARDO L. APORTADERA, JR — Member of the Commission on Appointments stating, for the reasons
SAMUEL SORIANO — Member therein given, why she considered the Commission on
HESIQUIO R. MALLILLIN — Member Appointments as having no jurisdiction to review her
NARCISO C. MONTEIRO — Member appointment as Chairman of the Commission on Human
Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
By virtue hereof, they may qualify and enter upon the
performance of the duties of the office furnishing this Office and
the Civil Service Commission with copies of their oath of office. January 13, 1 989

Very truly yours, SENATE PRESIDENT JOVITO R. SALONGA

Chairman
Commission on Appointments
CORAZON C. AQUINO 5 Senate, Manila

It is to be noted that by virtue of such appointment, petitioner S i r:

Bautista was advised by the President that she could qualify
and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her
to furnish the office of the President and the Civil Service
Commission with copies of her oath of office.
We acknowledge receipt of the communication from the
Commission on Appointments requesting our appearance on
January 19, 1989 for deliberation on our appointments.

On 22 December 1988, before the Chief Justice of this Court,
Hon. Marcelo B. Fernan, petitioner Bautista took her oath of
office by virtue of her appointment as Chairman of the
Commission on Human Rights. The full text of the oath of office
is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del
Pilar Street, Bangkal, Makati, Metro Manila having been
appointed to the position of CHAIRMAN of the Commission on
Human Rights, do solemnly swear that I will discharge to the
best of my ability all the duties and responsibilities of the office
to which I have been appointed; uphold the Constitution of the
Republic of the Philippines, and obey all the laws of the land
without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of
December in the year of Our Lord, 1988 in Manila.
Immediately, after taking her oath of office as Chairman of the
Commission on Human Rights, petitioner Bautista discharged
the functions and duties of the Office of Chairman of the
Commission on Human Rights which, as previously stated, she
We respectfully submit that the appointments of the
Commission commissioners of the Human Rights Commission
are not subject to confirmation by the Commission on
Appointments.
The Constitution, in Article VII Section 16 which expressly
vested on the President the appointing power, has expressly
mentioned the government officials whose appointments are
subject to the confirmation of the Commission on
Appointments of Congress. The Commissioners of the
Commission on Human Rights are not included among those.
Where the confirmation of the Commission on Appointments is
required, as in the case of the Constitutional Commissions
such as the Commission on Audit, Civil Service Commission
and the Commission on Elections, it was expressly provided
that the nominations will be subject to confirmation of
Commission on Appointments. The exclusion again of the
Commission on Human Rights, a constitutional office, from this
enumeration is a clear denial of authority to the Commission
on Appointments to review our appointments to the
Commission on Human Rights.
Furthermore, the Constitution specifically provides that this
Commission is an independent office which:
a. must investigate all forms of human rights violations
involving civil and political rights;
FINALS CONSTITUTION I ACJUCO 98
b. shall monitor the government's compliance in all our treaty
obligations on human rights. We submit that, the monitoring of
all agencies of government, includes even Congress itself, in
the performance of its functions which may affect human rights;
c. may call on all agencies of government for the
implementation of its mandate.
The powers of the Commission on Appointments is in fact a
derogation of the Chief Executive's appointing power and
therefore the grant of that authority to review a valid exercise
of the executive power can never be presumed. It must be
expressly granted.
The Commission on Appointments has no jurisdiction under
the Constitution to review appointments by the President of
Commissioners of the Commission on Human Rights.
In view of the foregoing considerations, as Chairman of an
independent constitutional office. I cannot submit myself to the
Commission on Appointments for the purpose of confirming or
rejecting my appointment.
Very truly yours,
MARY CONCEPCION BAUTISTA
Chairman9
In respondent Commission's comment (in this case), dated 3
February 1989, there is attached as Annex 1 a letter of the
Commission on Appointments' Secretary to the Executive
Secretary, Hon. Catalino Macaraig, Jr. making reference to the
"ad interim appointment which Her Excellency extended to
Atty. Mary Concepcion Bautista on 14 January 1989 as
Chairperson of the Commission on Human Rights" 10 and
informing Secretary Macaraig that, as previously conveyed to
him in a letter of 25 January 1989, the Commission on
Appointments disapproved petitioner Bautista's "ad
interim appointment' as Chairperson of the Commission on
Human Rights in view of her refusal to submit to the jurisdiction
of the Commission on Appointments. The letter reads:
1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency
extended to Atty. Mary Concepcion Bautista on 14 January
1989 as Chairperson of the Commission on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the
Commission on Appointments, assembled in plenary (session)
on the same day, disapproved Atty. Bautista's ad
interim appointment as Chairperson of the Commission on
Human Rights in view of her refusal to submit to the jurisdiction
of the Commission on Appointments.
This is to inform you that the Commission on Appointments,
likewise assembled in plenary (session) earlier today, denied
Senator Mamintal A. J. Tamano's motion for reconsideration of
the disapproval of Atty. Bautista's ad interim appointment as
Chairperson of the Commission on Human Rights.
Very truly yours,
RAOUL V. VICTORINO
Secretary 11
On the same date (1 February 1989), the Commission on
Appointments' Secretary informed petitioner Bautista that the
motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on
Human Rights" was denied by the Commission on
Appointments. The letter reads as follows:
1 February 1989
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the
Commission on Appointments, the denial by the Commission
on Appointments, assembled in plenary (session) earlier
today, of Senator Mamintal A.J. Tamano's motion for
reconsideration of the disapproval of your ad
interim appointment as Chairperson of the Commission on
Human Rights is respectfully conveyed.
Thank you for your attention.
Very truly yours,
RAOUL V. VICTORINO
Secretary 12
In Annex 3 of respondent Commission's same comment, dated
3 February 1989, is a news item appearing in the 3 February
1989 issue of the "Manila Standard" reporting that the
President had designated PCHR Commissioner Hesiquio R.
Mallillin as "Acting Chairman of the Commission" pending the
resolution of Bautista's case which had been elevated to the
Supreme Court. The news item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential
Commission on Human Rights Chairman Mary Concepcion
Bautista whose appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R.
Mallillin as acting chairman of the Commission pending the
resolution of Bautista's case which had been elevated to the
Supreme Court.
The President's action followed after Congressional
Commission on Appointments Chairman, Senate President
Jovito Salonga declared Bautista can no longer hold on to her
position after her appointment was not confirmed for the
second time.
For all practical purposes, Salonga said Bautista can be
accused of usurpation of authority if she insists to stay on her
office.
In effect, the President had asked Bautista to vacate her office
and give way to Mallillin (Mari Villa) 13
FINALS CONSTITUTION I ACJUCO 99
On 20 January 1989, or even before the respondent
Commission on Appointments had acted on her "ad
interimappointment as Chairman of the Commission on
Human Rights" petitioner Bautista filed with this Court the
present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any
action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human
Rights, on the lawfully extended appointment of the petitioner
as Chairman of the Commission on Human Rights, on the
ground that they have no lawful and constitutional authority to
confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the
respondent Commission on Appointments not to proceed
further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or
act on any order, resolution, etc. issued in the course of their
deliberations." 15
Respondents were required to file comment within ten (10)
days. 16 On 7 February 1989, petitioner filed an amended
petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting
chairman as party respondent and praying for the nullification
of his appointment. The succeeding day, a supplemental
urgent ex-parte motion was filed by petitioner seeking to
restrain respondent Mallillin from continuing to exercise the
functions of chairman and to refrain from demanding courtesy
resignations from officers or separating or dismissing
employees of the Commission.
Acting on petitioner's amended petition and supplemental
urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin to
cease and desist from effecting the dismissal, courtesy
resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required to
comment on said amended petition with allowance for
petitioner to file a reply within two (2) days from receipt of a
copy thereof.
Respondents Senator Salonga, the Commission on
Appointments the Committee on J & BC and Human Rights
filed a comment to the amended petition on 21 February
1989. 18 Petitioner filed her reply. 19 On 24 February 1989,
respondent Mallillin filed a separate comment. 20 The Court
required petitioner to reply to respondent Mallillin's comment
. 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an
instrumentality of a co-ordinate and co-equal branch of
government, the Court did not issue a temporary restraining
order directed against it. However, this does not mean that the
issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will not
shirk from its duty as the final arbiter of constitutional issues, in
the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it
is clear that petitioner Bautista was extended by Her
Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17
December 1988. Before this date, she was merely the "Acting
Chairman" of the Commission. Bautista's appointment on 17
December 1988 is an appointment that was for the President
solely to make, i.e., not an appointment to be submitted for
review and confirmation (or rejection) by the Commission on
Appointments. This is in accordance with Sec. 16, Art. VII of
the 1987 Constitution and the doctrine in Mison which is here
reiterated.
The threshold question that has really come to the fore is
whether the President, subsequent to her act of 17 December
1988, and after petitioner Bautista had qualified for the office
to which she had been appointed, by taking the oath of office
and actually assuming and discharging the functions and
duties thereof, could extend another appointment to the
petitioner on 14 January 1989, an "ad interim appointment" as
termed by the respondent Commission on Appointments or
any other kind of appointment to the same office of Chairman
of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and
Legislative Departments of government, and after careful
deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner
Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human
Rights on 17 December 1988, significantly she advised
Bautista (in the same appointment letter) that, by virtue of such
appointment, she could qualify and enter upon the
performance of the duties of the office (of Chairman of the
Commission on Human Rights). All that remained for Bautista
to do was to reject or accept the appointment. Obviously, she
accepted the appointment by taking her oath of office before
the Chief Justice of the Supreme Court, Hon. Marcelo B.
Fernan and assuming immediately thereafter the functions and
duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December
1988 as Chairman of the Commission on Human Rights was a
completed act on the part of the President. To paraphrase the
great jurist, Mr. Chief Justice Marshall, in the celebrated case
of Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The
appointment being the sole act of the President, must be
completely evidenced, when it is shown that he has done
everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the
executive over an officer, not removable at his will must cease.
That point of time must be when the constitutional power of
appointment has been exercised. And this power has been
exercised when the last act, required from the person
possessing the power, has been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's)
power over the office is terminated in all cases, where by law
the officer is not removable by him. The right to the office is
then in the person appointed, and he has the absolute,
unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14
JANUARY 1989
It is respondent Commission's submission that the President,
after the appointment of 17 December 1988 extended to
petitioner Bautista, decided to extend another appointment (14
FINALS CONSTITUTION I ACJUCO 100
January 1989) to petitioner Bautista, this time, submitting such
appointment (more accurately, nomination) to the Commission
on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further
appointment could be made to a position already filled by a
previously completed appointment which had been accepted
by the appointee, through a valid qualification and assumption
of its duties.
Respondent Commission vigorously contends that, granting
that petitioner's appointment as Chairman of the Commission
on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the
President to make, yet, it is within the president's prerogative
to voluntarily submit such appointment to the Commission on
Appointment for confirmation. The mischief in this contention,
as the Court perceives it, lies in the suggestion that the
President (with Congress agreeing) may, from time to
time move power boundaries, in the Constitution differently
from where they are placed by the Constitution.
The Court really finds the above contention difficult of
acceptance. Constitutional Law, to begin with, is concerned
with power not political convenience, wisdom, exigency, or
even necessity. Neither the Executive nor the Legislative
(Commission on Appointments) can create power where the
Constitution confers none. The evident constitutional intent is
to strike a careful and delicate balance, in the matter of
appointments to public office, between the President and
Congress (the latter acting through the Commission on
Appointments). To tilt one side or the other of the scale is to
disrupt or alter such balance of power. In other words, to the
extent that the Constitution has blocked off certain
appointments for the President to make with the participation
of the Commission on Appointments, so also has the
Constitution mandated that the President can confer no power
of participation in the Commission on Appointments over other
appointments exclusively reserved for her by the Constitution.
The exercise of political options that finds no support in the
Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual
exercise of its constitutionally delimited power to review
presidential appointments, create power to confirm
appointments that the Constitution has reserved to the
President alone. Stated differently, when the appointment is
one that the Constitution mandates is for the President to make
without the participation of the Commission on Appointments,
the executive's voluntary act of submitting such appointment to
the Commission on Appointments and the latter's act of
confirming or rejecting the same, are done without or in excess
of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO
THE COMMISSION ON APPOINTMENTS AN
APPOINTMENT THAT UNDER THE CONSTITUTION
SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE
MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that
the Executive may voluntarily allow the Commission on
Appointments to exercise the power of review over an
appointment otherwise solely vested by the Constitution in the
President. Yet, as already noted, when the President
appointed petitioner Bautista on 17 December 1988 to the
position of Chairman of the Commission on Human Rights with
the advice to her that by virtue of such appointment (not, until
confirmed by the Commission on Appointments), she could
qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to
the subject position which, under the Constitution, is to be
made, in the first place, without the participation of the
Commission on Appointments, was then and there a complete
and finished act, which, upon the acceptance by Bautista, as
shown by her taking of the oath of office and actual assumption
of the duties of said office, installed her, indubitably and
unequivocally, as the lawful Chairman of the Commission on
Human Rights for a term of seven (7) years. There was thus
no vacancy in the subject office on 14 January 1989 to which
an appointment could be validly made. In fact, there is no
vacancy in said office to this day.
Nor can respondents impressively contend that the new
appointment or re-appointment on 14 January 1989 was an ad
interim appointment, because, under the Constitutional
design, ad interim appointments do not apply to appointments
solely for the President to make, i.e., without the participation
of the Commission on Appointments. Ad interim appointments,
by their very nature under the 1987 Constitution, extend only
to appointments where the review of the Commission on
Appointments is needed. That is why ad interim appointments
are to remain valid until disapproval by the Commission on
Appointments or until the next adjournment of Congress; but
appointments that are for the President solely to make, that is,
without the participation of the Commission on Appointments,
can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING
THAT THE TENURE OF THE CHAIRMAN AND MEMBERS
OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT
THE PLEASURE OF THE PRESIDENT IS
UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation
by the Commission on Appointments, petitioner Bautista, as
Chairman of the Commission on Human Rights, can be
removed from said office at anytime, at the pleasure of the
President; and that with the disapproval of Bautista's
appointment (nomination) by the Commission on
Appointments, there was greater reason for her removal by the
President and her replacement with respondent Mallillin Thus,
according to respondent Mallillin the petition at bar has become
moot and academic.
We do not agree that the petition has become moot and
academic. To insist on such a posture is akin to deluding
oneself that day is night just because the drapes are drawn and
the lights are on. For, aside from the substantive questions of
constitutional law raised by petitioner, the records clearly show
that petitioner came to this Court in timely manner and has not
shown any indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order
No. 163-A, 30 June 1987, full text of which is as follows:
WHEREAS, the Constitution does not prescribe the term of
office of the Chairman and Members of the Commission on
Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of
the Philippines, do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order
No. 163 is hereby amended to read as follows:
The Chairman and Members of the Commission on Human
Rights shall be appointed by the President. Their tenure in
office shall be at the pleasure of the President.
FINALS CONSTITUTION I ACJUCO 101
SEC. 2. This Executive Order shall take effect immediately.
DONE in the City of Manila, this 30th day of June, in the year
of Our Lord, nineteen hundred and eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987,
Executive Order No. 163 25 was issued by the President, Sec.
2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission
on Human Rights shall be appointed by the President for a
term of seven years without reappointment. Appointments to
any vacancy shall be only for the unexpired term of the
predecessor.
It is to be noted that, while the earlier executive order (No. 163)
speaks of a term of office of the Chairman and Members of the
Commission on Human Rights — which is seven (7) years
without reappointment — the later executive order (163-A)
speaks of the tenure in office of the Chairman and Members of
the Commission on Human Rights, which is "at the pleasure of
the President."
Tenure in office should not be confused with term of office. As
Mr. Justice (later, Chief Justice) Concepcion in his concurring
opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for,
pursuant to the Constitution, "no officer or employee in the Civil
Service may be removed or suspended except for cause, as
provided by law" (Art. XII, section 4), and this fundamental
principle would be defeated if Congress could legally make the
tenure of some officials dependent upon the pleasure of the
President, by clothing the latter with blanket authority to
replace a public officer before the expiration of his term. 27
When Executive Order No. 163 was issued, the evident
purpose was to comply with the constitutional provision that
"the term of office and other qualifications and disabilities of
the Members of the Commission (on Human Rights) shall be
provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the
Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163, and
consistent with the constitutional design to give the
Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of said
Chairman (and Members) cannot be later made dependent on
the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion
in the Alba case, supra, because the power of the President,
sustained therein, to replace a previously appointed vice-
mayor of Roxas City given the express provision in Sec. 8,
Rep. Act No. 603 (creating the City of Roxas) stating that the
vice-mayor shall serve at the pleasure of the President, can
find no application to the Chairman of an INDEPENDENT
OFFICE, created not by statute but by the Constitution itself.
Besides, unlike in the Alba case, here the Constitution has
decreed that the Chairman and Members of the Commission
on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to be
independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations
of human rights, pinpointing responsibility and recommending
sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when
the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order
No. 163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be
declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A
as containing the seeds of its constitutional destruction. The
proceedings in the 1986 Constitutional Commission clearly
point to its being plainly at war with the constitutional intent of
independence for the Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it is
important for this body to be constitutionalized is the fact that
regardless of who is the President or who holds the executive
power, the human rights issue is of such importance that it
should be safeguarded and it should be independent of
political parties or powers that are actually holding the reins of
government. Our experience during the martial law period
made us realize how precious those rights are and, therefore,
these must be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not
want the term or the power of the Commission on Human
Rights to be coterminous with the president, because the
President's power is such that if he appoints a certain
commissioner and that commissioner is subject to the
President, therefore, any human rights violations committed
under the person's administration will be subject to presidential
pressure. That is what we would like to avoid — to make the
protection of human rights go beyond the fortunes of different
political parties or administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I
conferred with the honorable Chief Justice Concepcion and
retired Justice J.B.L. Reyes and they believe that there should
be an independent Commission on Human Rights free from
executive influence because many of the irregularities on
human rights violations are committed by members of the
armed forces and members of the executive branch of the
government. So as to insulate this body from political
interference, there is a need to constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need
for this to be constitutionalized, I would refer to a previous
inquiry that there is still a need for making this a constitutional
body free or insulated from interference. I conferred with former
Chief Justice Concepcion and the acting chairman of the
Presidential Committee on Human Rights, retired Justice
J.B.L. Reyes, and they are one in saying that this body should
be constitutionalized so that it will be free from executive
control or interferences, since many of the abuses are
committed by the members of the military or the armed
forces. 30
xxx xxx xxx
FINALS CONSTITUTION I ACJUCO 102

MR. SARMIENTO. Yes, Congress can create this body, but as
I have said, if we leave it to Congress, this commission will be
within the reach of politicians and of public officers and that to
me is dangerous. We should insulate this body from political
control and political interference because of the nature of its
functions to investigate all forms of human rights violations
which are principally committed by members of the military, by
the Armed Forces of the Philippines. 31
If there are charges against Bautista for misfeasance or
malfeasance in office, charges may be filed against her with
the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the
Sandiganbayan which may in turn order her suspension from
office while the case or cases against her are pending before
said court. 37 This is due process in action. This is the way of a
government of laws and not of men.

xxx xxx xxx A FINAL WORD

MR. GARCIA. The critical factor here is political control, and
normally, when a body is appointed by Presidents who may
change, the commission must remain above these changes in
political control. Secondly, the other important factor to
consider are the armed forces, the police forces which have
tremendous power at their command and, therefore, we would
need a commission composed of men who also are beyond
the reach of these forces and the changes in political
administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this
proposed special body, in order to function effectively, must be
invested with an independence that is necessary not only for
its credibility but also for the effectiveness of its work. However,
we want to make a distinction in this Constitution. May be what
happened was that it was referred to the wrong committee. In
the opinion of the committee, this need not be a commission
that is similar to the three constitutional commissions like the
COA, the COMELEC, and the Civil Service. It need not be in
that article. 33
It is to the credit of the President that, in deference to the rule
of law, after petitioner Bautista had elevated her case to this
Tribunal, Her Excellency merely designated an Acting
Chairman for the Commission on Human Rights (pending
decision in this case) instead of appointing another permanent
Chairman. The latter course would have added only more legal
difficulties to an already difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista
is declared to be, as she is, the duly appointed Chairman of the
Commission on Human Rights and the lawful incumbent
thereof, entitled to all the benefits, privileges and emoluments
of said office. The temporary restraining order heretofore
issued by the Court against respondent Mallillin enjoining him
from dismissing or terminating personnel of the Commission
on Human Rights is made permanent.
SO ORDERED.

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that

the Office of the President is not involved in the project. How
sure are we that the next President of the Philippines will be
somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and
commission created by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on

Human Rights is giving less importance to a truly fundamental
need to set up a body that will effectively enforce the rules
designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED

BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful

incumbent of the office of Chairman of the Commission on
Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof,
is not to say that she cannot be removed from office before the
expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right
to due process properly safeguarded. In the case of NASECO
vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation,
could be dismissed, she was entitled to a hearing and due
process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the
Commission on Human Rights.
FINALS CONSTITUTION I ACJUCO 103
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of the
National Labor Relations Commission, EDNA BONTO
PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III,
MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E.
VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA,
LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO
I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN
and OSCAR N. ABELLA, in their capacity as
Commissioners of the National Labor Relations
Commission, and GUILLERMO CARAGUE, in his capacity
as Secretary of Budget and Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987
Constitution which provides:
Sec. 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the
executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. He shall also
appoint all other officers of the Government
whose appointments are not otherwise
provided for by law, and those whom he
may be authorized by law to appoint. The
Congress may, by law, vest the
appointment of other officers lower in rank
in the President alone, in the courts, or in
the heads of departments, agencies,
commissions, or boards.
The President shall have the power to
make appointments during the recess of
the Congress, whether voluntary or
compulsory, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress. 1
The power of the Commission on Appointments (CA for
brevity) to confirm appointments, contained in the aforequoted
paragraph 1 of Sec. 16, Art. VII, was first construed
in Sarmiento III vs. Mison 2 as follows:
. . . it is evident that the position of
Commissioner of the Bureau of Customs (a
bureau head) is not one of those within the
first group of appointments where the
consent of the Commission on
Appointments is required. As a matter of
fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus"
among those officers whose appointments
need the consent of the Commission on
Appointments, the 1987 Constitution, on
the other hand, deliberately excluded the
position of "heads of bureaus" from
appointments that need the consent
(confirmation) of the Commission on
Appointments.
. . . Consequently, we rule that the
President of the Philippines acted within
her constitutional authority and power in
appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs,
without submitting his nomination to the
Commission on Appointments for
confirmation. . . .
. . . In the 1987 Constitution, however, as
already pointed out, the clear and
expressed intent of its framers was to
exclude presidential appointments from
confirmation by the Commission on
Appointments, except appointments to
offices expressly mentioned in the first
sentence of Sec. 16, Art.VII. Consequently,
there was no reason to use in the third
sentence of Sec. 16, Article VII the word
"alone" after the word "President" in
providing that Congress may by law vest
the appointment of lower-ranked officers in
the President alone, or in the courts, or in
the heads of departments, because the
power to appoint officers whom he (the
president) may be authorized by law to
appoint is already vested in the President,
without need of confirmation by the
Commission on Appointments, in the
second sentence of the same Sec. 16,
Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time
involving the appointment of the Chairman of the Commission
on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the
Commission on Human Rights is not
among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987
Constitution, appointments to which are to
be made with the confirmation of the
Commission on Appointments, it follows
that the appointment by the President of the
Chairman of the CHR is to be made without
the review or participation of the
Commission on Appointments. To be more
precise, the appointment of the Chairman
and Members of the Commission on
Human Rights is not specifically provided
for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service
Commission, the Commission on Elections
and the Commission on Audit, whose
appointments are expressly vested by the
Constitution in the president with the
consent of the Commission on
Appointments. The president appoints the
Chairman and Members of The
Commission on Human Rights pursuant to
the second sentence in Section 16, Art. VII,
that is, without the confirmation of the
Commission on Appointments because
they are among the officers of government
"whom he (the President) may be
authorized by law to appoint." And Section
2(c), Executive Order No. 163, 5 May 1987,
authorizes the President to appoint the
FINALS CONSTITUTION I ACJUCO 104
Chairman and Members of the
Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita
Quintos Deles, et al. v. The Commission on Constitutional
Commissions, et al.,4 the power of confirmation of the
Commission on Appointments over appointments by the
President of sectoral representatives in Congress was upheld
because:
. . . Since the seats reserved for sectoral
representatives in paragraph 2, Section 5,
Art. VI may be filled by appointment by the
President by express provision of Section
7, Art. XVIII of the Constitution, it is
indubitable that sectoral representatives to
the House of Representatives are among
the "other officers whose appointments are
vested in the President in this Constitution,"
referred to in the first sentence of Section
16, Art. VII whose appointments are
subject to confirmation by the Commission
on Appointments.
From the three (3) cases above-mentioned, these doctrines
are deducible:
1. Confirmation by the Commission on Appointments is
required only for presidential appointees mentioned in the first
sentence of Section 16, Article VII, including, those officers
whose appointments are expressly vested by the Constitution
itself in the president (like sectoral representatives to Congress
and members of the constitutional commissions of Audit, Civil
Service and Election).
2. Confirmation is not required when the President appoints
other government officers whose appointments are not
otherwise provided for by law or those officers whom he may
be authorized by law to appoint (like the Chairman and
Members of the Commission on Human Rights). Also, as
observed in Mison, when Congress creates inferior offices but
omits to provide for appointment thereto, or provides in an
unconstitutional manner for such appointments, the officers
are considered as among those whose appointments are not
otherwise provided for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law),
amending the Labor Code (PD 442) was approved. It provides
in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding
Commissioners and other Commissioners
shall all be appointed by the President,
subject to confirmation by the Commission
on Appointments. Appointments to any
vacancy shall come from the nominees of
the sector which nominated the
predecessor. The Executive Labor Arbiters
and Labor Arbiters shall also be appointed
by the President, upon recommendation of
the Secretary of Labor and Employment,
and shall be subject to the Civil Service
Law, rules and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed
the Chairman and Commissioners of the NLRC representing
the public, workers and employers sectors. The appointments
stated that the appointees may qualify and enter upon the
performance of the duties of the office. After said
appointments, then Labor Secretary Franklin Drilon issued
Administrative Order No. 161, series of 1989, designating the
places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and
legality of the permanent appointments extended by the
President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission
(NLRC), without submitting the same to the Commission on
Appointments for confirmation pursuant to Art. 215 of the Labor
Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715
which has in its favor the presumption of validity. RA 6715 is
not, according to petitioner, an encroachment on the
appointing power of the executive contained in Section 16, Art.
VII, of the Constitution, as Congress may, by law, require
confirmation by the Commission on Appointments of other
officers appointed by the President additional to those
mentioned in the first sentence of Section 16 of Article VII of
the Constitution. Petitioner claims that
the Mison and Bautista rulings are not decisive of the issue in
this case for in the case at bar, the President issued permanent
appointments to the respondents without submitting them to
the CA for confirmation despite passage of a law (RA 6715)
which requires the confirmation by the Commission on
Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA
6715 which amended the Labor Code transgressesSection 16,
Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional
basis. Mison and Bautista laid the issue to rest, says the
Solicitor General, with the following exposition:
As interpreted by this Honorable Court in
the Mison case, confirmation by the
Commission on Appointments is required
exclusively for the heads of executive
departments, ambassadors, public
ministers, consuls, officers of the armed
forces from the rank of colonel or naval
captain, and other officers whose
appointments are vested in the President
by the Constitution, such as the members
of the various Constitutional Commissions.
With respect to the other officers whose
appointments are not otherwise provided
for by the law and to those whom the
President may be authorized by law to
appoint, no confirmation by the
Commission on Appointments is required.
Had it been the intention to allow Congress
to expand the list of officers whose
appointments must be confirmed by the
Commission on Appointments, the
Constitution would have said so by adding
the phrase "and other officers required by
law" at the end of the first sentence, or the
phrase, "with the consent of the
Commission on Appointments" at the end
of the second sentence. Evidently, our
Constitution has significantly omitted to
provide for such additions.
The original text of Section 16 of Article VII
of the present Constitution as embodied in
Resolution No. 517 of the Constitutional
Commission reads as follows:
FINALS CONSTITUTION I ACJUCO 105

"The President shall enumerated in Section 16, but the word

nominate and, with the nominate does not any more appear in the
consent of the 2nd and 3rd sentences. Therefore, the
Commission on president's appointment pursuant to the
Appointments, shall 2nd and 3rd sentences needs no
appoint the heads of confirmation. 6
the executive
departments and The only issue to be resolved by the Court in the present case
bureaus, ambassadors, is whether or not Congress may, by law, require confirmation
other public ministers by the Commission on Appointments of appointments
and consuls, or officers extended by the president to government officers additional to
of the armed forces those expressly mentioned in the first sentence of Sec. 16, Art.
from the rank of captain
VII of the Constitution whose appointments require
or commander, and all confirmation by the Commission on Appointments.
other officers of the
Government whose
appointments are not To resolve the issue, we go back to Mison where the Court
herein otherwise stated:
provided for by law, and
those whom he may be . . . there are four (4) groups of officers
authorized by law to whom the President shall appoint. These
appoint. The Congress four (4) groups, to which we will hereafter
may by law vest the refer from time to time, are:
appointment of inferior
officers in the President
alone, in the courts or in First, the heads of the
the heads of the executive departments,
department." ambassadors, other
public ministers and
consuls, officers of the
Three points should be noted regarding armed forces from the
sub-section 3 of Section 10 of Article VII of rank of colonel or naval
the 1935 Constitution and in the original captain, and other
text of Section 16 of Article VII of the officers whose
present Constitution as proposed in appointments are
Resolution No. 517. vested in him in this
Constitution;
First, in both of them, the appointments of
heads of bureaus were required to be Second, all other
confirmed by the Commission on officers of the
Appointments. Government whose
appointments are not
Second, in both of them, the appointments otherwise provided for
of other officers, "whose appointments are by law;
not otherwise provided for by law to
appoint" are expressly made subject to Third, those whom the
confirmation by the Commission on president may be
Appointments. However, in the final version authorized by law to
of Resolution No. 517, as embodied in appoint;
Section 16 of Article VII of the present
Constitution, the appointment of the above
mentioned officers (heads of bureaus; Fourth, officers lower in
other officers whose appointments are not rank whose
provided for by law; and those whom he appointments the
may be authorized by law to appoint) are Congress may by law
excluded from the list of those officers vest in the President
whose appointments are to be confirmed alone. 7
by the Commission on Appointments. This
amendment, reflected in Section 16 of Mison also opined:
Article VII of the Constitution, clearly shows
the intent of the framers to exclude such
appointments from the requirement of In the course of the debates on the text of
confirmation by the Commission on Section 16, there were two (2) major
Appointments. changes proposed and approved by the
Commission. These were (1) the exclusion
of the appointments of heads of bureaus
Third, under the 1935 Constitution the word from the requirement of confirmation by the
"nominate" qualifies the entire Subsection Commission on Appointments; and (2) the
3 of Section 10 of Article VII thereof. exclusion of appointments made under the
second sentence of the section from the
Respondent reiterates that if confirmation same requirement. . . .
is required, the three (3) stage process of
nomination, confirmation and appointment The second sentence of Sec. 16, Art. VII refers to all other
operates. This is only true of the first group officers of the government whose appointments are not
FINALS CONSTITUTION I ACJUCO 106

otherwise provided for by law and those whom the President ascertainment of the meaning of the phrase
may be authorized by law to appoint. "which shall not be diminished during their
continuance in office," found in Section 9,
Article VIII of the Constitution, referring to
Indubitably, the NLRC Chairman and Commissioners fall
within the second sentence of Section 16, Article VII of the the salaries of judicial officers.
Constitution, more specifically under the "third groups" of
appointees referred to in Mison, i.e. those whom the President xxx xxx xxx
may be authorized by law to appoint. Undeniably, the
Chairman and Members of the NLRC are not among the The rule is recognized
officers mentioned in the first sentence of Section 16, Article elsewhere that the
VII whose appointments requires confirmation by the legislature cannot pass
Commission on Appointments. To the extent that RA 6715 any declaratory act, or
requires confirmation by the Commission on Appointments of act declaratory of what
the appointments of respondents Chairman and Members of the law was before its
the National Labor Relations Commission, it is unconstitutional passage, so as to give it
because: any binding weight with
the courts. A legislative
1) it amends by legislation, the first sentence of Sec. 16, Art. definition of a word as
VII of the Constitution by adding thereto appointments used in a statute is not
requiring confirmation by the Commission on Appointments; conclusive of its
and meaning as used
elsewhere; otherwise,
the legislature would be
2) it amends by legislation the second sentence of Sec. 16, Art.
VII of the Constitution, by imposing the confirmation of the usurping a judicial
Commission on Appointments on appointments which are function in defining a
otherwise entrusted only with the President. term. (11 Am. Jur., 914,
emphasis supplied).

Deciding on what laws to pass is a legislative prerogative.

Determining their constitutionality is a judicial function. The
Court respects the laudable intention of the legislature.
Regretfully, however, the constitutional infirmity of Sec. 13 of
RA 6715 amending Art. 215 of the Labor Code, insofar as it
requires confirmation of the Commission on Appointments
over appointments of the Chairman and Member of the
National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate of
the Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the
Constitution shall form part of the legal system of the
Philippines.8 No doctrine or principle of law laid down by the
Court in a decision rendered en banc or in division may be
modified or reversed except by the Court sitting en banc.9
. . . The interpretation upon a law by this
Court constitutes, in a way, a part of the law
as of the date that law was originally
passed, since this Court's construction
merely establishes the contemporaneous
legislative intent that the law thus
construed intends to effectuate. The settled
rule supported by numerous authorities is a
restatement of the legal maxim "legis
interpretado legis vim obtinent" — the
interpretation placed upon the written law
by a competent court has the force of
law. 10
The rulings in Mison, Bautista and Quintos-Deles have
interpreted Art. VII, Sec. 16 consistently in one manner. Can
legislation expand a constitutional provision after the Supreme
Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section
13, Republic Act No. 590, Congress says
that taxing the salary of a judicial officer is
not a decrease of compensation. This is a
clear example of interpretation or
The legislature cannot,
upon passing law which
violates a constitutional
provision, validate it so
as to prevent an attack
thereon in the courts, by
a declaration that it
shall be so construed
as not to violate the
constitutional inhibition.
(11 Am., Jur., 919,
emphasis supplied).
We have already said that the Legislature
under our form of government is assigned
the task and the power to make and enact
laws, but not to interpret them. This is more
true with regard to the interpretation of the
basic law, the Constitution, which is not
within the sphere of the Legislative
department. If the Legislature may declare
what a law means, or what a specific
portion of the Constitution means,
especially after the courts have in actual
case ascertained its meaning by
interpretation and applied it in a decision,
this would surely cause confusion and
instability in judicial processes and court
decisions. Under such a system, a final
court determination of a case based on a
judicial interpretation of the law or of the
Constitution may be undermined or even
annulled by a subsequent and different
interpretation of the law or of the
Constitution by the Legislative department
that would be neither wise nor desirable,
being clearly violative of the fundamental
principles of our constitutional system of
government, particularly those governing
the separation of powers. 14(Emphasis
supplied)
Congress, of course, must interpret the Constitution, must
estimate the scope of its constitutional powers when it sets out
FINALS CONSTITUTION I ACJUCO 107

to enact legislation and it must take into account the relevant

constitutional prohibitions. 15

. . . The Constitution did not change with

public opinion.

It is not only the same words, but the same

in meaning . . . and as long as it it speaks
not only in the same words, but with the
same meaning and intent with which it
spoke when it came from the hands of its
framers, and was voted and adopted by the
people . . . 16

The function of the Court in passing upon an act of Congress

is to "lay the article of the Constitution which is invoked beside
the statute which is challenged and to decide whether the latter
squares with the former" and to "announce its considered
judgment upon the question." 17

It can not be overlooked that Sec. 16, Art. VII of the 1987
Constitution was deliberately, not unconsciously, intended by
the framers of the 1987 Constitution to be a departure from the
system embodied in the 1935 Constitution where the
Commission on Appointments exercised the power of
confirmation over almost all presidential appointments, leading
to many cases of abuse of such power of confirmation.
Subsection 3, Section 10, Art. VII of the 1935 Constitution
provided:

3. The President shall nominate and with

the consent of the Commission on
Appointments, shall appoint the heads of
the executive departments and bureaus,
officers of the Army from the rank of
colonel, of the Navy and Air Forces from
the rank of captain or commander, and all
other officers of the Government whose
appointments are not herein otherwise
provided for, and those whom he may be
authorized by law to appoint; . . .

The deliberate limitation on the power of confirmation of the

Commission on Appointments over presidential appointments,
embodied in Sec. 16, Art. VII of the 1987 Constitution, has
undoubtedly evoked the displeasure and disapproval of
members of Congress. The solution to the apparent problem,
if indeed a problem, is not judicial or legislative but
constitutional. A future constitutional convention or Congress
sitting as a constituent (constitutional) assembly may then
consider either a return to the 1935 Constitutional provisions
or the adoption of a hybrid system between the 1935 and 1987
constitutional provisions. Until then, it is the duty of the Court
to apply the 1987 Constitution in accordance with what it says
and not in accordance with how the legislature or the executive
would want it interpreted.

WHEREFORE, the petition is DISMISSED. Art. 215 of the

Labor Code as amended by RA 6715 insofar as it requires the
confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National
Labor Relations Commission (NLRC) is hereby declared
unconstitutional and of no legal force and effect.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 108

[G.R. No. 107369. August 11, 1999]
JESULITO A. MANALO, petitioner, vs. PEDRO G.
SISTOZA, REGINO ARO III, NICASIO MA. CUSTODIO,
GUILLERMO DOMONDON, RAYMUNDO L. LOGAN,
WILFREDO R. REOTUTAR, FELINO C. PACHECO, JR.,
RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ,
ENRIQUE T. BULAN, PEDRO J. NAVARRO, DOMINADOR
M. MANGUBAT, RODOLFO M. GARCIA and HONORABLE
SALVADOR M. ENRIQUEZ II In His Capacity as Secretary
of Budget and Management, respondents.
DECISION
PURISIMA, J.:
The case at bar is not of first impression. The issue
posed concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief
Executive has been put to rest in a number of cases. The court
finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of
the Revised Rules of Court, petitioners question the
constitutionality and legality of the permanent appointments
issued by former President Corazon C. Aquino to the
respondent senior officers of the Philippine National Police
who were promoted to the ranks of Chief Superintendent and
Director without their appointments submitted to the
Commission on Appointments for confirmation under Section
16, Article VII of the 1987 Constitution and Republic Act 6975
otherwise known as the Local Government Act of
1990. Impleaded in the case is the former Secretary of Budget
and Management Salvador M. Enriquez III, who approved and
effected the disbursements for the salaries and other
emoluments of subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent
provisions of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP
Chief. - The command and direction of the PNP shall be vested
in the Chief of the PNP who shall have the power to direct and
control tactical as well as strategic movements, deployment,
placement, utilization of the PNP or any of its units and
personal, including its equipment, facilities and other
resources. Such command and direction of the Chief of the
PNP may be delegated to subordinate officials with respect to
the units under their respective commands, in accordance with
the rules and regulations prescribed by the Commission. The
Chief of the PNP shal also have the power to issue detailed
implementing policies and instructions regarding personnel,
funds, properties, records, correspondence and such other
matters as may be necesary to effectively carry out the
functions, powers and duties of the Bureau. The Chief of the
PNP shall be appointed by the President from among the
senior officers down to the rank of the chief superintendent,
subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall serve
a term of office not to exceed four (4) years: Provided, further,
That in times of war or other national emergency declared by
Congress, the President may extend such term of
office. [1] (underlining supplied).
(a) Police Officer I to Senior Police Officer IV - Appointed by
the PNP regional director for regional personnel or by the Chief
of the PNP for the national headquarters personnel and
attested by the Civil Service Commission;
(b) Inspector to Superintendent - Appointed by the Chief of the
PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General -
Appointed by the President upon recommendation of the Chief
of the PNP, with the proper endorsement by the Chairman of
the Civil Service Commission and subject to confirmation by
the Commission on Appointments; and
(d) Director General - Appointed by the President from among
the senior officers down to the rank of chief superintendent in
the service, subject to confirmation by the Commission on
Appointments; Provided, That the Chief of the PNP shall serve
a tour of duty not to exceed four (4) years; Provided, further,
That, in times of war or other national emergency declared by
Congres, the President may extend such tour of duty.
(underlining supplied).
In accordance therewith, on March 10, 1992, the
President of the Philippines, through then Executive Secretary
Franklin M. Drilon, promoted the fifteen (15) respondent police
officers herein, by appointing them to positions in the Philippine
National Police with the rank of Chief Superintendent to
Director[2], namely:
Chief Supt. PEDRO G. SISTOZA - Director
Chief Supt. REGINO ARO III - Director
Chief Supt. NICASIO MA. CUSTODIO - Director
Chief Supt. GUILLERMO DOMONDON - Director
Chief Supt. RAYMUNDO L. LOGAN - Director
Senior Supt. WILFREDO REOTUTAR - Chief Superintendent
Senior Supt. FELINO C. PACHECO, JR. - Chief
Superintendent
Senior Supt. RUBEN J. CRUZ - Chief Superintendent
Senior Supt. GERONIMO B. VALDERRAMA - Chief
Superintendent
Senior Supt. MERARDO G. ABAYA - Chief Superintendent
Senior Supt. EVERLINO NARTATEZ - Chief Superintendent
Senior Supt. ENRIQUE T. BULAN - Chief Superintendent
Senior Supt. PEDRO J. NAVARRO - Chief Superintendent
Senior Supt. DOMINADOR MANGUBAT - Chief
Superintendent

Senior Supt. RODOLFO M. GARCIA - Chief Superintendent

Sec.31. Appointment of PNP Officers and Members. - The
appointment of the officers and members of the PNP shall be
effected in the following manner:
FINALS CONSTITUTION I ACJUCO 109
The appointments of respondent police officers were in a
permanent capacity. Their letters of appointment stated in part
: from the rank of colonel or naval captain, and other officers
By virtue hereof, they may qualify and enter upon the
performance of the duties of the office, furnishing this office
and the Civil Service Commission with copies of their oath of
office.[3]
Without their names submitted to the Commission on
Appointments for confirmation, the said police officers took
their oath of office and assumed their respective
positions. Thereafter, the Department of Budget and
Management, under the then Secretary Salvador M. Enriquez
III, authorized disbursements for their salaries and other
emoluments.
On October 21, 1992, the petitioner brought before this
Court this present original petition for prohibition, as a taxpayer
suit, to assail the legality of subject appointments and
disbursements made therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and
discharging the functions attached thereto, despite their invalid
appointments, in view of the failure to secure the required
confirmation of the Commission on Appointments as required
by the Constitution and the law, are acting without or in excess
of their jurisdiction or with grave abuse of discretion,
considering that :
A. Republic Act 6975 is a valid law that duly requires
confirmation of the appointments of officers from the rank of
senior superintendent and higher by the Commission on
Appointments;
B. The Philippine National Police is akin to the Armed Forces
where the Constitution specifically requires confirmation by the
Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
disbursements in favor of respondent officers despite the
unconstitutionality and illegality of their appointments is acting
without or in excess of his jurisdiction or with grave abuse of
discretion.
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the
presumption of constitutionality and that every statute passed
by Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
accorded to each department of the government requires that
the court should avoid, as much as possible, deciding
constitutional questions.
The Court agrees with petitioner. However, it is equally
demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant
to the organic law.Courts have the inherent authority to
determine whether a statute enacted by the legislature
transcends the limit delineated by the fundamental
law.[4] When it does, the courts will not hesitate to strike down
such unconstitutional law.
The power to make appointments is vested in the Chief
Executive by Section 16, Article VII of the Constitution, which
provides:
Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces
whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
The aforecited provision of the Constitution has been the
subject of several cases on the issue of the restrictive function
of the Commission on Appointments with respect to the
appointing power of the President. This court touched upon the
historical antecedent of the said provision in the case of
Sarmiento III vs. Mison[5] in which it was ratiocinated upon that
Section 16 of Article VII of the 1987 Constitution requiring
confirmation by the Commission on Appointments of certain
appointments issued by the President contemplates a system
of checks and balances between the executive and legislative
branches of government. Experience showed that when
almost all presidential appointments required the consent of
the Commission on Appointments, as was the case under the
1935 Constitution, the commission became a venue of horse-
trading and similar malpractices.[6] On the other hand, placing
absolute power to make appointments in the President with
hardly any check by the legislature, as what happened under
1973 Constitution, leads to abuse of such power. Thus was
perceived the need to establish a middle ground between the
1935 and 1973 Constitutions. The framers of the 1987
Constitution deemed it imperative to subject certain high
positions in the government to the power of confirmation of the
Commission on Appointments and to allow other positions
within the exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in the
leading case of Sarmiento III vs. Mison[7], and in the
subsequent cases of Bautista vs. Salonga[8], Quintos-Deles vs.
Constitutional Commission[9], and Calderon vs. Carale[10];
under Section 16, Article VII, of the Constitution, there are four
groups of officers of the government to be appointed by the
President:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
It is well-settled that only presidential appointments
belonging to the first group require the confirmation by the
Commission on Appointments. The appointments of
respondent officers who are not within the first category, need
not be confirmed by the Commission on Appointments. As held
in the case of Tarrosa vs. Singson[11], Congress cannot by law
expand the power of confirmation of the Commission on
FINALS CONSTITUTION I ACJUCO 110

Appointments and require confirmation of appointments of for the salaries and other emoluments of the respondent police
other government officials not mentioned in the first sentence officers whose appointments are valid.
of Section 16 of Article VII of the 1987 Constitution.
WHEREFORE, for lack of merit, the petition under
Consequently, unconstitutional are Sections 26 and 31 consideration is hereby DISMISSED. No pronouncement as to
of Republic Act 6975 which empower the Commission on costs.
Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be SO ORDERED.
confirmed. But the unconstitutionality of the aforesaid sections
notwithstanding, the rest of Republic Act 6975 stands. It is well-
settled that when provisions of law declared void are severable
from the main statute and the removal of the unconstitutional
provisions would not affect the validity and enforceability of the
other provisions, the statute remains valid without its voided
sections.[12]
It is petitioners submission that the Philippine National
Police is akin to the Armed Forces of the Philippines and
therefore, the appointments of police officers whose rank is
equal to that of colonel or naval captain require confirmation by
the Commission on Appointments.

This contention is equally untenable. The Philippine

National Police is separate and distinct from the Armed Forces
of the Philippines. The Constitution, no less, sets forth the
distinction. Under Section 4 of Article XVI of the 1987
Constitution,

The Armed Forces of the Philippines shall be composed of a

citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular
force necessary for the security of the State.

On the other hand, Section 6 of the same Article of the

Constitution ordains that:

The State shall establish and maintain one police force, which
shall be national in scope and civilian in character to be
administered and controlled by a national police
commission. The authority of local executives over the police
units in their jurisdiction shall be provided by law.

To so distinguish the police force from the armed forces,

Congress enacted Republic Act 6975 which states in part:

Section 2. Declaration of policy - It is hereby declared to be the

policy of the State to promote peace and order, ensure public
safety and further strengthen local government capability
aimed towards the effective delivery of the basic services to
the citizenry through the establishment of a highly efficient and
competent police force that is national in scope and civilian in
character. xxx

The policy force shall be organized, trained and equipped

primarily for the performance of police functions. Its national
scope and civilian character shall be paramount. No element
of the police force shall be military nor shall any position thereof
be occupied by active members of the Armed Forces of the
Philippines.

Thereunder, the police force is different from and

independent of the armed forces and the ranks in the military
are not similar to those in the Philippine National Police. Thus,
directors and chief superintendents of the PNP, such as the
herein respondent police officers, do not fall under the first
category of presidential appointees requiring the confirmation
by the Commission on Appointments.
In view of the foregoing disquisition and conclusion, the
respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with grave
abuse of discretion in authorizing and effecting disbursements
FINALS CONSTITUTION I ACJUCO 111
[G.R. No. 153881. March 24, 2003]
ELPIDIO G. SORIANO III, petitioner, vs. REUBEN S. LISTA,
DOMINGO T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C.
TABARES, ARTHUR N. GOSINGAN, EFREN L. TADURAN,
CESAR A. SARILE, DANILO M. VILDA and HONORABLE
EMILIA T. BONCODIN, in her capacity as Secretary of
Budget and Management, respondents.
DECISION
CORONA, J.:
Before us is a Petition for Prohibition under Rule 65 of
the Rules of Court questioning the constitutionality and legality
of the permanent appointments, made by President Gloria
Macapagal-Arroyo, of public respondents to different positions
in the Philippine Coast Guard and their subsequent
assumption of office without confirmation by the Commission
on Appointments under the 1987 Constitution.
The petition impleads Hon. Emilia T. Boncodin in her
capacity as Secretary of the Department of Budget and
Management (DBM). Petitioner, Elpidio G. Soriano, filed the
instant petition as member of the Integrated Bar of the
Philippines and as a taxpayer.
Public respondents were promoted to different ranks in
the Philippine Coast Guard (PCG) on different dates as follows:
Reuben S. Lista Vice Admiral, Philippine Coast Guard
Domingo T. Estera Rear Admiral, Philippine Coast Guard
Miguel C. Tabares Commodore, Philippine Coast Guard
Arthur N. Gosingan Commodore, Philippine Coast Guard
Efren L. Taduran Naval Captain, Philippine Coast Guard
Cesar A. Sarile Naval Captain, Philippine Coast Guard
Danilo M. Vilda Naval Captain, Philippine Coast Guard
Elpidio B. Padama Commodore, Philippine Coast Guard
Petitioner bewails the fact that despite the non-
submission of their names to the Commission on
Appointments (CA) for confirmation, all of the said respondent
officers of the PCG had assumed their duties and
functions. According to petitioner, their respective
appointments are illegal and unconstitutional for failure to
undergo the confirmation process in the CA. Thus, they should
be prohibited from discharging their duties and functions as
such officers of the PCG.
In the same vein, petitioner opines that there is no legal
basis for the DBM to allow the disbursement of the salaries and
emoluments of respondent officers of the PCG. Accordingly,
he prays that respondent Secretary Boncodin be ordered to
desist from allowing such disbursements until the confirmation
of their respective appointments by the CA.
At the outset, the Court finds petitioner to be without any
legal personality to file the instant petition. We have ruled that
a private citizen is allowed to raise constitutional questions only
if he can show that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of
the government, the injury is fairly traceable to the challenged
action and the injury is likely to be redressed by a favorable
action.[1] In the case at bar, petitioner has failed to clearly
demonstrate that he has personally suffered actual or
threatened injury. It should be emphasized that a party
bringing a suit challenging the constitutionality of an act or
statute must show not only that the law or act is invalid, but
also that he has sustained or is in immediate, or imminent
danger of sustaining some direct injury as a result of its
enforcement and not merely that he suffers thereby in some
indefinite way.[2]
The instant petition cannot even be classified as a
taxpayers suit because petitioner has no interest as such and
this case does not involve the exercise by Congress of its
taxing power.
Assuming arguendo that petitioner has the legal
personality to question the subject appointments, the petition
will nevertheless fail. As aptly pointed out by the Solicitor
General, the PCG used to be administered and maintained as
a separate unit of the Philippine Navy under Section 4 of RA
5173. It was subsequently placed under the direct supervision
and control of the Secretary of the Department of National
Defense (DND) pursuant to Section 4 of PD 601. Eventually, it
was integrated into the Armed Forces of the Philippines (AFP)
as a major subordinate unit of the Philippine Navy under
Section 54 of Chapter 8, Sub-title II, Title VIII, Book IV of EO
292, as amended.
However, on March 30, 1998, after the aforesaid
changes in the charter of the PCG, then President Fidel V.
Ramos, in the exercise of his statutory authority to reorganize
the Office of the President, issued EO 475 transferring the
PCG from the DND to the Office of the President. He later on
again transferred the PCG from the Office of the President
to the Department of Transportation and
Communications (DOTC).
Now that the PCG is under the DOTC and no longer part
of the Philippine Navy or the Armed Forces of the Philippines,
the promotions and appointments of respondent officers of the
PCG, or any PCG officer from the rank of captain and higher
for that matter, do not require confirmation by the CA.
Section 16, Article VII of the 1987 Constitution provides:
Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
It is clear from the foregoing provision of the Constitution
that only appointed officers from the rank of colonel or naval
captain in the armed forces require confirmation by the CA.
The rule is that the plain, clear and unambiguous language of
the Constitution should be construed as such and should not
be given a construction that changes its meaning.[3]
The enumeration of appointments subject to confirmation
by the CA under Section 16, Article VII of the 1987 Constitution
is exclusive. The clause officers of the armed forces from the
rank of colonel or naval captain refers to military
officers alone. This is clear from the deliberations of the
Constitutional Commission on the proposed text of said
Section 16, Article VII of the Constitution. Since the promotions
and appointments of respondent officers are not covered by
the above-cited provision of the Constitution, the same need
not be confirmed by the CA.[4]
FINALS CONSTITUTION I ACJUCO 112

Accordingly, the Court declares that no grave abuse of

discretion amounting to lack or excess of jurisdiction was
committed by respondent officers of the PCG. Their
assumption to office as well as the disbursement of their
respective salaries and other emoluments by the respondent
Secretary of the DBM are hereby declared valid and legal.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 113

AQUILINO Q. PIMENTEL, G.R. No. 164978 Avelino J. National Defense 23 August 2004
JR., Cruz, Jr.
EDGARDO J. ANGARA, Present: Rene C. Villa Agrarian Reform 23 August 2004
JUAN PONCE ENRILE, Davide, Jr., C.J., Joseph H. Tourism 23 August 2004
LUISA P. EJERCITO- Puno, Durano
ESTRADA, Panganiban, Michael T. Environment and 23 August 2004
JINGGOY E. ESTRADA, Quisumbing, Defensor Natural Resources
PANFILO M. LACSON, Ynares-Santiago,
ALFREDO S. LIM, Sandoval-Gutierrez,
The appointment papers are uniformly worded as follows:
JAMBY A.S. MADRIGAL, Carpio,
and Austria-Martinez,
SERGIO R. OSMEA III, Corona,
Sir:
Petitioners, Carpio Morales,
Pursuant to the provisions of
- versus -
existing laws, you are hereby appointed
EXEC. SECRETARY Callejo, Sr.,
ACTING SECRETARY, DEPARTMENT
EDUARDO
OF (appropriate department) vice (name of
R. ERMITA, FLORENCIO Azcuna,
person replaced).
B. ABAD,
AVELINO J. CRUZ, JR., Tinga,
By virtue hereof, you may qualify
MICHAEL T. DEFENSOR, Chico-Nazario, and
and enter upon the performance of the
JOSEPH H. DURANO, Garcia, JJ.
duties and functions of the office, furnishing
RAUL M. GONZALEZ,
this Office and the Civil Service
ALBERTO G. ROMULO,
Commission with copies of your Oath of
RENE C. VILLA, and Promulgated:
Office. (signed) Gloria Arroyo
ARTHUR C. YAP,
Respondents took their oath of office and assumed
Respondents. October 13, 2005
duties as acting secretaries.
x---------------------------------------------------
--x
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator
Pimentel), Edgardo J. Angara (Senator Angara), Juan Ponce
DECISION
Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator
Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada),
CARPIO, J.:
Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator
Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R.
Osmea, III (Senator Osmea) (petitioners) filed the present
petition as Senators of the Republic of the Philippines.
The Case

Congress adjourned on 22 September 2004. On 23

This is a petition for certiorari and prohibition[1] with a
September 2004, President Arroyo issued ad
prayer for the issuance of a writ of preliminary injunction to
interim appointments[3] to respondents as secretaries of the
declare unconstitutional the appointments issued by President
departments to which they were previously appointed in an
Gloria Macapagal-Arroyo (President Arroyo) through
acting capacity. The appointment papers are uniformly worded
Executive Secretary Eduardo R. Ermita (Secretary Ermita) to
as follows:
Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor,
Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo,
Sir:
Rene C. Villa, and Arthur C. Yap (respondents) as acting
secretaries of their respective departments. The petition also
Pursuant to the provisions of
seeks to prohibit respondents from performing the duties of
existing laws, you are hereby appointed
department secretaries.
SECRETARY [AD INTERIM],
DEPARTMENT OF (appropriate
department).
Antecedent Facts
By virtue hereof, you may qualify
and enter upon the performance of the
The Senate and the House of Representatives
duties and functions of the office, furnishing
(Congress) commenced their regular session on 26 July 2004.
this Office and the Civil Service
The Commission on Appointments, composed of Senators and
Commission with copies of your oath of
Representatives, was constituted on 25 August 2004.
office.
(signed)Gloria Arroyo
Meanwhile, President Arroyo issued
appointments[2] to respondents as acting secretaries of their
Issue
respective departments.

Appointee Department Date of The petition questions the constitutionality of

Appointment President Arroyos appointment of respondents as acting
Arthur C. Yap Agriculture 15 August 2004 secretaries without the consent of the Commission on
Alberto G. Foreign Affairs 23 August 2004 Appointments while Congress is in session.
Romulo
Raul M. Justice 23 August 2004
Gonzalez The Courts Ruling
Florencio B. Education 23 August 2004
Abad
FINALS CONSTITUTION I ACJUCO 114
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because
President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately after
the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin
acts already done.[4] However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review. [5]
In the present case, the mootness of the petition does not bar
its resolution. The question of the constitutionality of the
Presidents appointment of department secretaries in an acting
capacity while Congress is in session will arise in every such
appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the
legislature may not interfere with the exercise of this executive
power except in those instances when the Constitution
expressly allows it to interfere.[6] Limitations on the executive
power to appoint are construed strictly against the
legislature.[7] The scope of the legislatures interference in the
executives power to appoint is limited to the power to prescribe
the qualifications to an appointive office. Congress cannot
appoint a person to an office in the guise of prescribing
qualifications to that office. Neither may Congress impose on
the President the duty to appoint any particular person to an
office.[8]
However, even if the Commission on Appointments is
composed of members of Congress, the exercise of its powers
is executive and not legislative. The Commission on
Appointments does not legislate when it exercises its power to
give or withhold consent to presidential appointments. Thus:
xxx The Commission on Appointments is a
creature of the Constitution. Although its
membership is confined to members of
Congress, said Commission is
independent of Congress. The powers of
the Commission do not come from
Congress, but emanate directly from the
Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the
Commissioner are purely executive in
nature. xxx[9]
On Petitioners Standing
The Solicitor General states that the present petition is a quo
warranto proceeding because, with the exception of Secretary
Ermita, petitioners effectively seek to oust respondents for
unlawfully exercising the powers of department secretaries.
The Solicitor General further states that petitioners may not
claim standing as Senators because no power of the
Commission on Appointments has been infringed upon or
violated by the President. xxx If at all, the Commission on
Appointments as a body (rather than individual members of the
Congress) may possess standing in this case. [10]
Petitioners, on the other hand, state that the Court can exercise
its certiorari jurisdiction over unconstitutional acts of the
President.[11] Petitioners further contend that they possess
standing because President Arroyos appointment of
department secretaries in an acting capacity while Congress is
in session impairs the powers of Congress. Petitioners
cite Sanlakas v. Executive Secretary[12] as basis, thus:
To the extent that the powers of
Congress are impaired, so is the power of
each member thereof, since his office
confers a right to participate in the exercise
of the powers of that institution.
An act of the Executive which
injures the institution of Congress causes a
derivative but nonetheless substantial
injury, which can be questioned by a
member of Congress. In such a case, any
member of Congress can have a resort to
the courts.
Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners to claim
standing in the present case as members of Congress.
President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among
the petitioners, only the following are members of the
Commission on Appointments of the 13th Congress: Senator
Enrile as Minority Floor Leader, Senator Lacson as Assistant
Minority Floor Leader, and Senator Angara, Senator Ejercito-
Estrada, and Senator Osmea as members.
Thus, on the impairment of the prerogatives of
members of the Commission on Appointments, only Senators
Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have
standing in the present petition. This is in contrast to Senators
Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in
protecting their perceived prerogatives as members of
Congress, possess no standing in the present petition.
The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not
have appointed respondents as acting secretaries because in
case of a vacancy in the Office of a Secretary, it is only an
Undersecretary who can be designated as Acting
Secretary.[13] Petitioners base their argument on Section 10,
Chapter 2, Book IV of Executive Order No. 292 (EO
292),[14]which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of
the Undersecretary. - The Undersecretary
shall:
xxx
(5) Temporarily discharge the
duties of the Secretary in the latters
absence or inability to discharge his duties
for any cause or in case of vacancy of the
said office, unless otherwise provided by
law. Where there are more than one
Undersecretary, the Secretary shall
allocate the foregoing powers and duties
FINALS CONSTITUTION I ACJUCO 115
among them. The President shall likewise
make the temporary designation of Acting
Secretary from among them; and
xxx
Petitioners further assert that while Congress is in session,
there can be no appointments, whether regular or acting, to a
vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its
consent.[15]
In sharp contrast, respondents maintain that the President can
issue appointments in an acting capacity to department
secretaries without the consent of the Commission on
Appointments even while Congress is in session. Respondents
point to Section 16, Article VII of the 1987 Constitution. Section
16 reads:
SEC. 16. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint the
heads of the executive departments,
ambassadors, other public ministers and
consuls, or officers of the armed forces
from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall
also appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint. The Congress may, by law, vest
the appointment of other officers lower in
rank in the President alone, in the courts, or
in the heads of departments, agencies,
commissions, or boards.
The President shall have the
power to make appointments during the
recess of the Congress, whether voluntary
or compulsory, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a
chapter to the Presidents power of appointment. Sections 16
and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of
Appointment. The President shall
exercise the power to appoint such
officials as provided for in the
Constitution and laws.
SEC. 17. Power to Issue
Temporary Designation. (1) The 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, appointment to which
is vested in him by law, when: (a) the
officer regularly appointed to the office
is unable to perform his duties by
reason of illness, absence or any other
cause; or (b) there exists a vacancy[.]
(2) The person designated shall
receive the compensation attached to the
position, unless he is already in the
government service in which case he shall
receive only such additional compensation
as, with his existing salary, shall not exceed
the salary authorized by law for the position
filled. The compensation hereby authorized
shall be paid out of the funds appropriated
for the office or agency concerned.
(3) In no case shall a temporary
designation exceed one (1)
year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically
opposed lines of thought. Petitioners assert that the President
cannot issue appointments in an acting capacity to department
secretaries while Congress is in session because the law does
not give the President such power. In contrast, respondents
insist that the President can issue such appointments because
no law prohibits such appointments.
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.[16] 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.
Petitioners 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. [17]
Finally, petitioners claim that the issuance of appointments in
an acting capacity is susceptible to abuse. Petitioners 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.
FINALS CONSTITUTION I ACJUCO 116

In distinguishing ad interim appointments from

appointments in an acting capacity, a noted textbook writer on
constitutional law has observed:

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.[18]

However, we find no abuse in the present case. The absence

of abuse is readily apparent from President Arroyos issuance
of ad interim appointments to respondents immediatelyupon
the recess of Congress, way before the lapse of one year.

WHEREFORE, we DISMISS the present petition

for certiorari and prohibition.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 117
[A.M. No. 98-5-01-SC. November 9, 1998]
In Re Appointments dated March 30, 1998 of Hon. Mateo
A. Valenzuela and Hon. Placido B. Vallarta as Judges of
the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively.
DECISION
NARVASA, CJ.:
The question presented for resolution in the
administrative matter at bar is whether, during the period of the
ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill
vacancies in the judiciary, in view of Sections 4(1) and 9 of
Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban in the
interest of public service.
Resolution of the issues is needful; it will preclude a
recurrence of any conflict in the matter of nominations and
appointments to the Judiciary - as that here involved - between
the Chief Executive, on the one hand, and on the other, the
Supreme Court and the Judicial and Bar Council over which
the Court exercises general supervision and wields specific
powers including the assignment to it of other functions and
duties in addition to its principal one of recommending
appointees to the Judiciary, and the determination of its
Members' emoluments.[1]
I The Relevant Facts
The Resolution of the Court En Banc, handed down on
May 14, 1998, sets out the relevant facts and is for that reason
hereunder reproduce in full.
Referred to the Court En Banc by the Chief Justice are the
appointments signed by His Excellency the President under
the date of March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively. The appointments were received at the Chief
Justice's chambers on May 12, 1998. The referral was made
in view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and
Bar Council on March 9, 1998. The meeting had been called,
according to the Chief Justice as Ex Officio Chairman, to
discuss the question raised by some sectors about the
"constitutionality of *** appointments" to the Court of Appeals,
specifically, in light of the forthcoming presidential
elections. Attention was drawn to Section 15, Article VII of the
Constitution reading as follows:
"SEC 15. Two months immediately before the next presidential
elections and up to the end of his 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."
On the other hand, appointments to fill vacancies in the
Supreme court during the period mentioned in the provision
just quoted could seemingly be justified by another provision of
the same Constitution.Section 4(1) of Article VIII which states:
"SEC 4 (1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. ***. Any vacancy shall
be filled within ninety days from the occurrence thereof."
Also pertinent although not specifically discussed is Section 9
of the same Article VIII which provides that for the lower courts,
the President shall issue the appointments - from a list of at
least three nominees prepared by the Council for every
vacancy - within ninety days from the submission of the list.
The view was then expressed by Senior associate Justice
Florenz D. Regalado, Consultant of the Council, who had been
a member of the Committee of the Executive Department and
of the Committee on the Judicial Department of the 1986
Constitutional Commission, that on the basis of the
Commission's records, the election ban had no application to
appointments to the Court of Appeals. Without any extended
discussion or any prior research and study on the part of the
other Members of the JBC, this hypothesis was accepted, and
was then submitted to the President for consideration, together
with the Council's nominations for eight (8) vacancies in the
Court of Appeals.
On April 6, 1998 the Chief Justice received an official
communication from the Executive Secretary transmitting the
appointments of eight (8) Associate Justices of the Court of
Appeals all of which had been duly signed on March 11, 1998
by His Excellency, the President. In view of the fact that all the
appointments had been signed on March 11, 1998 - the day
immediately before the commencement of the ban on
appointments imposed by Section 15, Article VII of the
Constitution - which impliedly but no less clearly indicated that
the President's Office did not agree with the hypothesis that
appointments to the Judiciary were not covered by said ban,
the Chief Justice resolved to defer consideration of
nominations for the vacancy in the Supreme Court created by
the retirement of Associate Justice Ricardo J. Francisco,
specially considering that the Court had scheduled sessions in
Baguio City in April, 1998, that the legislature's representatives
to the JBC were occupied with the forthcoming elections, and
that a member of the Council was going on a trip out of the
country.
On May 4, 1998, the Chief Justice received a letter from the
President, addressed to the JBC requesting transmission of
the "list of final nominees" for the vacancy "no later than
Wednesday, May 6, 1998," in view of the duty imposed on him
by the Constitution "to fill up the vacancy *** within ninety (90)
days from February 13, 1998, the date the present vacancy
occurred."
On May 5, 1998, Secretary of Justice Silvestre Bello III
requested the Chief Justice for "guidance" respecting the
expressed desire of the "regular members" of the JBC to hold
a meeting immediately to fill up the vacancy in the Court in line
with the President's letter of May 4. The Chief Justice advised
Secretary Bello to await the reply that he was drafting to the
President's communication, a copy of which he would give to
the Secretary the following day.
On May 6, 1998 the Chief Justice sent his reply to the
President. He began by stating that no sessions had been
scheduled for the Council after the May elections for the reason
that apparently the President's Office did not share the view
posited by the JBC that Section 15, Article VII of the
Constitution had no application to JBC-recommended
appointments - the appointments to the Court of Appeals
having been all uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision - thus giving
rise to the "need to undertake further study of the matter,"
prescinding from "the desire to avoid any constitutional issue
regarding the appointment to the mentioned vacancy" and the
further fact that "certain senior members of the Court of
Appeals *** (had) asked the Council to reopen the question of
their exclusion on account of age from such (final) list." He
closed with the assurance that the JBC expected to deliberate
FINALS CONSTITUTION I ACJUCO 118
on the nominations "forthwith upon the completion of the
coming elections." The letter was delivered to Malacaang at
about 5 o'clock in the afternoon of May 6, 1998, and a copy
given to the Office of Justice Secretary Bello shortly before that
hour.
It would appear, however, that the Justice Secretary and the
regular members of the Council had already taken action
without awaiting the Chief Justice's promised response to the
President's letter of May 4, 1998. On that day, May 6, 1998,
they met at some undisclosed place, deliberated, and came to
an agreement on a resolution which they caused to be reduced
to writing and thereafter signed. In that two-page Resolution
they drew attention to Section 4 (1), Article VIII of the
Constitution (omitting any mention of Section 15, Article VII) as
well as to the President's letter of May 4 in which he
"emphatically requested that the required list of final nominee
be submitted to him;" and pointing out that the "Council would
be remiss in its duties" should it fail to submit the nominations,
closed with an appeal that the Chief Justice convene the
Council for the purpose "on May 7, 1998, at 2:00 o'clock in the
afternoon." This Resolution they transmitted to the Chief
Justice together with their letter, also dated May 6, in which
they emphasized that "we are pressed for time" again drawing
attention to Section 4 (1). In Article VIII of the Constitution (and
again omitting any reference to Section 15, Article VII). They
ended their letter with the following intriguing paragraph:
"Should the Chief Justice be not disposed to call for the
meeting aforesaid, the undersigned members constituting the
majority will be constrained to convene the Council for the
purpose of complying with its Constitutional mandate."
It seems evident, as just intimated, that the resolution and the
covering letter were deliberated on, prepared and signed hours
before delivery of the Chief Justice's letter to the President and
the Justice Secretary.
Since the Members of the Council appeared determined to
hold a meeting regardless of the Chief Justice's wishes, the
latter convoked the Council to a meeting at 3 o'clock in the
afternoon of May 7, 1998.Present at the meeting were Chief
Justice, Secretary Bello, ex officio member and the regular
members of the Council; Justice Regino Hermosisima, Atty.
Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on
the invitation of the Chief Justice, were Justices Hilario G.
Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo,
Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio
V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing
and Fidel P. Purisima. The Chief Justice reviewed the events
leading to the session, and after discussion, the body agreed
to give the President time to answer the Chief Justice's letter
of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter from His
Excellency the President in reply to his letter of May 6 (which
the President said had been "received early this
morning"). The President expressed the view that "the
election-ban provision (Article VII, Sec. 15) *** applies only
to executive appointments or appointments in the executive
branch of government," the whole article being "entitled
'EXECUTIVE DEPARTMENT.'" He also observed that further
proof of his theory "is the fact that appointments to the judiciary
have special, specific provisions applicable to them" (citing
Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view
thereof, he "firmly and respectfully reiterate(d) *** (his) request
for the Judicial and Bar Council to transmit *** the final list of
nominees for the lone Supreme Court vacancy."
The Chief Justice replied to the letter the following day, May 8,
1998. Since the Chief Justice's letter explains the issue quite
plainly, it is here quoted in full.
"Thank you for your letter of May 7, 1998, responding to my
own communication of May 6, 1998 which, I would like to say,
reflects the collective sentiments of my colleagues in the
Supreme Court.Knowing how busy you are, I will deal
straightaway with the points set out in your letter.
The dating of the latest appointments to the Court of Appeals
was adverted to merely to explain how we in the Court and the
JBC came to have the impression that you did not share the
view expressed in the JBC minutes of March 9, 1998 'that there
is no election ban with regard to the JBC appointments.' Be this
as it may, the Court feels that there is a serious question
concerning the matter in light of the seemingly inconsistent
provisions of the Constitution. The first of these is Section 15,
Article VII, which reads:
'SEC. 15. Two months immediately before the next presidential
elections and up to the end of his 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.'
The second is Section 4(1) of Article VIII which states:
'SEC 4(1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. ***. Any vacancy shall
be filled within ninety days from the occurrence thereof.'
As you can see, Your Excellency, Section 15 of Article VII
imposes a direct prohibition on the President: he "shall not
make appointments" within the period mentioned, and since
there is no specification of which appointments are proscribed,
the same may be considered as applying to all appointments
of any kind and nature. This is the general rule then, the only
exception being only as regards "executive positions" as to
which "temporary appointments" may be made within the
interdicted period "when continued vacancies therein will
prejudice public service or endanger public safety." As the
exception makes reference only to "executive" positions, it
would seem that "judicial" positions are covered by the general
rule.
On the other hand, Section 4 (1) of Article VIII, requires that
any vacancy in the Supreme Court "shall be filled within ninety
days from the occurrence thereof." Unlike Section 15, Article
VII, the duty of filling the vacancy is not specifically imposed on
the President; hence, it may be inferred that it is a duty shared
by the Judicial and Bar council and the President.
Now, in view of the general prohibition in the first-quoted
provision, how is the requirement of filling vacancies in the
Court within ninety days to be construed? One interpretation
that immediately suggests itself is that Section 4(1), Article VIII
is a general provision while Section 15, Article VII is a particular
one; that is to say, normally, when there are no presidential
elections - which after all occur only every six years - Section
4(1), Article VIII shall apply: vacancies in the Supreme Court
shall be filled within 90 days; but when (as now) there are
presidential elections, the prohibition in Section 15, Article VII
comes into play: the President shall not make any
appointments. The reason for said prohibition, according to Fr.
J. Bernas, S.J., an authority on Constitutional Law and himself
a member of the Constitutional Commission, is "(I)n order not
to tie the hands of the incoming President through midnight
FINALS CONSTITUTION I ACJUCO 119

appointments." Another interpretation is that put forth in the
Minutes of the JBC Meeting of March 9, 1998.
I must emphasize that the validity of any appointment to the
Supreme Court at this time hinges on the correct interpretation
of the foregoing sections of the Constitution. On account of the
importance of the question, I consulted the Court about it but,
as I stated in my letter of May 6, 1998, "it declined to take any
position, since obviously there had not been enough time to
deliberate on the same *** (although it) did agree that further
study was necessary ***."
Since the question has actually come up, and its importance
cannot be gainsaid, and it is the Court that is empowered under
the Constitution to make an authoritative interpretation of its
(provisions) or of those of any other law. I believe that the Court
may now perhaps consider the issue ripe for determination and
come to grips with it, to avoid any possible polemics
concerning the matter. However the Court resolves the issue,
no serious prejudice will be done. Should the Court rule that
the President is indeed prohibited to make appointments in a
presidential election year, then any appointment attempted
within the proscribed period would be void anyway. If the Court
should adjudge that the ban has no application to
appointments to the Supreme Court, the JBC may submit
nominations and the President may make the appointment
forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must thus be
dealt with with utmost circumspection, to avoid any question
regarding the validity of an appointment to the Court at this
time, or any accusation of "midnight" appointments or rash,
hasty action on the part of the JBC or the President.
justiciable issue before the Court, an issue of sufficient
importance to warrant consideration and adjudication on the
merits.
Accordingly, the Court Resolved to (1) CONSIDER the case at
bar an administrative matter and cause it to be appropriately
docketed; (2) to DIRECT the Clerk of Court to immediately
serve copies of this Resolution on (a) the Office of the
President, (b) the Office of the Solicitor General, (c) Hon.
Mateo A. Valenzuela, and (d) Hon. Placido B. Vallarta (at their
addresses recorded in the Judicial and Bar Council); and (3) to
REQUIRE the Office of the President, the Office of the Solicitor
General, Hon. Mateo A. Valenzuela, and Hon. Placido B.
Vallarta to file their comments on this Resolution within fifteen
(15) days from notice thereof.
The Court further Resolved that (1) pending the foregoing
proceedings and the deliberation by the Court on the matter,
and until further orders, no action be taken on the
appointments of Hon. Valenzuela and Hon. Vallarta which in
the meantime shall be held in abeyance and not given any
effect and said appointees shall refrain from taking their oath
of office; and that (2) exercising its power of supervision over
the Judicial and Bar Council, said Council and its ex officio and
regular Members herein mentioned be INSTRUCTED, as they
are hereby INSTRUCTED, to defer all action on the matter of
nominations to fill up the lone vacancy in the Supreme Court
or any other vacancy until further orders.
SO ORDERED.

In view thereof, and upon the advice and consent of the

Members of the Court, I am requesting the regular Members of
the Judicial and Bar Council to defer action on the matter until
further advice by the Court. I earnestly make the same request
of you, Your Excellency, I assure you, however, that as befits
a matter in which the Chief Executive has evinced much
interest, my colleagues and I will give it preferential and
expeditious attention and consideration. To this end, I intend to
convene the Court by next week, at the latest."

On May 8, 1998, again on the insistence of the regular

Members of the JBC, another meeting was held at which were
present the Chief Justice, the Secretary of Justice and the
three regular Members above mentioned, as well as Justices
Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N.
Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago M.
Kapunan, Vicente V. Mendoza, Artemio V. Panganiban,
Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The meeting closed with a resolution that "the
constitutional provisions *** (in question) be referred to the
Supreme Court En Banc for appropriate action, together with
the request that the Supreme Court consider that the ninety-
day period stated in Section 4 (1), Article VIII be suspended or
interrupted in view of the peculiar circumstances ***."

On May 12, 1998, the Chief Justice received from Malacaang

the appointments of two (2) Judges of the Regional Trial Court
mentioned above. This places on the Chief Justice the
obligation of acting thereon; i.e., transmitting the appointments
to the appointees so that they might take their oaths and
assume their duties of their office. The trouble is that in doing
so, the Chief Justice runs the risk of acting in a manner
inconsistent with the Constitution, for these appointments
appear prima facie, at least, to be expressly prohibited by
Section 15, Article VII of the charter. This circumstance, and
the referral of the constitutional question to the Court in virtue
of the Resolution of May 8, 1998, supra, operate to raise a
FINALS CONSTITUTION I ACJUCO 120
GR 191002
De casto vs. JBC
x-------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno
by May 17, 2010 occurs just days after the coming presidential
elections on May 10, 2010. Even before the event actually
happens, it is giving rise to many legal dilemmas. May the
incumbent President appoint his successor, considering that
Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from
making appointments within two months immediately before
the next presidential elections and up to the end of his
term, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service
or endanger public safety? What is the relevance of Section 4
(1), Article VIII (Judicial Department) of the Constitution, which
provides that any vacancy in the Supreme Court shall be filled
within 90 days from the occurrence thereof, to the matter of the
appointment of his successor? May the Judicial and Bar
Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno,
and submit the list of nominees to the incumbent President
even during the period of the prohibition under Section 15,
Article VII? Does mandamus lie to compel the submission of
the shortlist of nominees by the JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta
respectively commenced G.R. No. 191002[1] and G.R. No.
191149[2] as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent
President the list of at least three nominees for the position of
the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his
petition for prohibition, proposes to prevent the JBC from
conducting its search, selection and nomination proceedings
for the position of Chief Justice.
In G.R. No. 191057, a special civil action
for mandamus,[4] the Philippine Constitution Association
(PHILCONSA) wants the JBC to submit its list of nominees for
the position of Chief Justice to be vacated by Chief Justice
Puno upon his retirement on May 17, 2010, because the
incumbent President is not covered by the prohibition that
applies only to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M.
Mendoza, a former Solicitor General, seeks a ruling from the
Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March
9, 2010 with the petitions earlier filed, petitioners Amador Z.
Tolentino, Jr. and Roland B. Inting, Integrated Bar of the
Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from
submitting a list of nominees for the position of Chief Justice to
the President for appointment during the period provided for in
Section 15, Article VII.
All the petitions now before the Court pose as the principal
legal question whether the incumbent President can appoint
the successor of Chief Justice Puno upon his retirement. That
question is undoubtedly impressed with transcendental
importance to the Nation, because the appointment of the
Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments
Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela),[7] by which the Court held that
Section 15, Article VII prohibited the exercise by the President
of the power to appoint to judicial positions during the period
therein fixed.
In G.R. No. 191002, De Castro submits that the
conflicting opinions on the issue expressed by legal
luminaries one side holds that the incumbent President is
prohibited from making appointments within two months
immediately before the coming presidential elections and until
the end of her term of office as President on June 30, 2010,
while the other insists that the prohibition applies only to
appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the
appointment of a Chief Justice during the election ban has
impelled the JBC to defer the decision to whom to send its list
of at least three nominees, whether to the incumbent President
or to her successor.[8] He opines that the JBC is thereby
arrogating unto itself the judicial function that is not conferred
upon it by the Constitution, which has limited it to the task of
recommending appointees to the Judiciary, but has not
empowered it to finally resolve constitutional questions, which
is the power vested only in the Supreme Court under the
Constitution. As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the list
of nominees to the President; and that a final and definitive
resolution of the constitutional questions raised above would
diffuse (sic) the tension in the legal community that would go a
long way to keep and maintain stability in the judiciary and the
political system.[9]
In G.R. No. 191032, Soriano offers the view that the
JBC committed a grave abuse of discretion amounting to lack
or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and
selection process for the position of Chief Justice to succeed
Chief Justice Puno, because the appointing authority for the
position of Chief Justice is the Supreme Court itself, the
Presidents authority being limited to the appointment of the
Members of the Supreme Court. Hence, the JBC should not
intervene in the process, unless a nominee is not yet a Member
of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in
G.R. No. 191057 that unorthodox and exceptional
circumstances spawned by the discordant interpretations, due
perhaps to a perfunctory understanding, of Sec. 15, Art. VII in
relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution
have bred a frenzied inflammatory legal debate on the
constitutional provisions mentioned that has divided the bench
and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby
fashioning transcendental questions or issues affecting the
JBCs proper exercise of its principal function of recommending
appointees to the Judiciary by submitting only to the President
(not to the next President) a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy
from which the members of the Supreme Court and judges of
the lower courts may be appointed. [11] PHILCONSA further
believes and submits that now is the time to revisit and
review Valenzuela, the strange and exotic Decision of the
Court en banc.[12]
Peralta states in his petition in G.R. No. 191149
that mandamus can compel the JBC to immediately transmit to
the President, within a reasonable time, its nomination list for
FINALS CONSTITUTION I ACJUCO 121
the position of chief justice upon the mandatory retirement of
Chief Justice Reynato S. Puno, in compliance with its
mandated duty under the Constitution in the event that the
Court resolves that the President can appoint a Chief Justice
even during the election ban under Section 15, Article VII of
the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is
an actual controversy, considering that the JBC has initiated
the process of receiving applications for the position of Chief
Justice and has in fact begun the evaluation process for the
applications to the position, and is perilously near completing
the nomination process and coming up with a list of nominees
for submission to the President, entering into the period of the
ban on midnight appointments on March 10, 2010, which only
highlights the pressing and compelling need for a writ of
prohibition to enjoin such alleged ministerial function of
submitting the list, especially if it will be cone within the period
of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy
that has arisen from the forthcoming compulsory retirement of
Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section
9, Article VIII, that vacancy shall be filled within ninety days
from the occurrence thereof from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy.
On December 22, 2009, Congressman Matias V.
Defensor, an ex officio member of the JBC, addressed a letter
to the JBC, requesting that the process for nominations to the
office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore,
the JBC passed a resolution,[15] which reads:
The JBC, in its en banc meeting
of January 18, 2010, unanimously agreed
to start the process of filling up the position
of Chief Justice to be vacated on May 17,
2010 upon the retirement of the incumbent
Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the
position for applications or
recommendations; deliberate on the list of
candidates; publish the names of
candidates; accept comments on or
opposition to the applications; conduct
public interviews of candidates; and
prepare the shortlist of candidates.
As to the time to submit this shortlist
to the proper appointing authority, in the
light of the Constitution, existing laws and
jurisprudence, the JBC welcomes and will
consider all views on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for
application or recommendation, and published for that purpose
its announcement dated January 20, 2010,[16] viz:
The Judicial and Bar Council (JBC)
announces the opening for application or
recommendation, of the position of CHIEF
JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May
2010 upon the retirement of the incumbent
Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations
for this position must be submitted not later
than 4 February 2010 (Thursday) to the
JBC Secretariat xxx:
The announcement was published on January 20,
2010 in the Philippine Daily Inquirer and The Philippine
Star.[17]
Conformably with its existing practice, the JBC automatically
considered for the position of Chief Justice the five most senior
of the Associate Justices of the Court, namely: Associate
Justice Antonio T. Carpio; Associate Justice Renato C.
Corona; Associate Justice Conchita Carpio Morales; Associate
Justice Presbitero J. Velasco, Jr.; and Associate Justice
Antonio Eduardo B. Nachura. However, the last two declined
their nomination through letters dated January 18,
2010 and January 25, 2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez,
the retired Deputy Ombudsman for Luzon, applied, but later
formally withdrew his name from consideration through his
letter dated February 8, 2010. Candidates who accepted their
nominations without conditions were Associate Justice Renato
C. Corona; Associate Justice Teresita J. Leonardo-De Castro;
Associate Justice Arturo D. Brion; and Associate Justice
Edilberto G. Sandoval (Sandiganbayan). Candidates who
accepted their nominations with conditions were Associate
Justice Antonio T. Carpio and Associate Justice Conchita
Carpio Morales.[19] Declining their nominations were Atty.
Henry Villarica (via telephone conversation with the Executive
Officer of the JBC on February 5, 2010) and Atty. Gregorio M.
Batiller, Jr. (via telephone conversation with the Executive
Officer of the JBC on February 8, 2010).[20]
The JBC excluded from consideration former RTC Judge
Florentino Floro (for failure to meet the standards set by the
JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the
Office of the Ombudsman (due to cases pending in the Office
of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed
to the next step of announcing the names of the following
candidates to invite the public to file their sworn complaint,
written report, or opposition, if any, not later than February 22,
2010, to wit: Associate Justice Carpio, Associate Justice
Corona, Associate Justice Carpio Morales, Associate Justice
Leonardo-De Castro, Associate Justice Brion, and Associate
Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues
of February 13, 2010.[22]
Issues
Although it has already begun the process for the
filling of the position of Chief Justice Puno in accordance with
its rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the
controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17,
2010 when the vacancy occurs upon the retirement of Chief
Justice Puno.
The actions of the JBC have sparked a vigorous
debate not only among legal luminaries, but also among non-
FINALS CONSTITUTION I ACJUCO 122
legal quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief
Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges
of the Regional Trial Court, the Court addressed this issue now
before us as an administrative matter to avoid any possible
polemics concerning the matter, but he opines that the
polemics leading to Valenzuela would be miniscule [sic]
compared to the polemics that have now erupted in regard to
the current controversy, and that unless put to a halt, and this
may only be achieved by a ruling from the Court, the integrity
of the process and the credibility of whoever is appointed to the
position of Chief Justice, may irreparably be impaired. [23]
Accordingly, we reframe the issues as submitted by each
petitioner in the order of the chronological filing of their
petitions.
G.R. No. 191002
a. Does the JBC have the power and
authority to resolve the constitutional
question of whether the incumbent
President can appoint a Chief Justice
during the election ban period?
b. Does the incumbent President have the
power and authority to appoint during
the election ban the successor of
Chief Justice Puno when he vacates
the position of Chief Justice on his
retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice
vested in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against
appointment under Section 15, Article
VII of the Constitution applicable only
to positions in the Executive
Department?
b. Assuming that the prohibition under
Section 15, Article VII of the
Constitution also applies to members
of the Judiciary, may such
appointments be excepted because
they are impressed with public interest
or are demanded by the exigencies of
public service, thereby justifying these
appointments during the period of
prohibition?
c. Does the JBC have the authority to
decide whether or not to include and
submit the names of nominees who
manifested interest to be nominated
for the position of Chief Justice on the
understanding that his/her nomination
will be submitted to the next President
in view of the prohibition against
presidential appointments from March
11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the
Constitution apply to appointments to
positions in the Judiciary under
Section 9, Article VIII of the
Constitution?
b. May President Gloria Macapagal-Arroyo
make appointments to the Judiciary
after March 10, 2010, including that for
the position of Chief Justice after Chief
Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to
withhold the submission of the short
list to President Gloria Macapagal-
Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to
submit the list of nominees to the
incumbent President without
committing a grave violation of the
Constitution and jurisprudence
prohibiting the incumbent President
from making midnight appointments
two months immediately preceding the
next presidential elections until the
end of her term?
b. Is any act performed by the JBC,
including the vetting of the candidates
for the position of Chief Justice,
constitutionally invalid in view of the
JBCs illegal composition allowing
each member from the Senate and the
House of Representatives to have one
vote each?
On February 16, 2010, the Court directed the JBC
and the Office of the Solicitor General (OSG) to comment on
the consolidated petitions, except that filed in G.R. No.
191342.
On February 26, 2010, the JBC submitted its
comment, reporting therein that the next stage of the process
for the selection of the nominees for the position of Chief
Justice would be the public interview of the candidates and the
preparation of the short list of candidates, including the
interview of the constitutional experts, as may be needed. [24] It
stated:[25]
Likewise, the JBC has yet to take a
position on when to submit the
shortlist to the proper appointing
authority, in light of Section 4 (1),
Article VIII of the Constitution,
which provides that vacancy in the
Supreme Court shall be filled within
ninety (90) days from the
occurrence thereof, Section 15,
Article VII of the Constitution
concerning the ban on Presidential
appointments two (2) months
immediately before the next
presidential elections and up to the
end of his term and Section 261 (g),
Article XXII of the Omnibus Election
Code of the Philippines.
FINALS CONSTITUTION I ACJUCO 123

12. Since the Honorable Supreme Court is Supreme Court should be so reduced that it will have no
the final interpreter of the Constitution, quorum, or should the voting on a particular important question
the JBC will be guided by its decision requiring expeditious resolution be divided; [34] and
in these consolidated Petitions and that Valenzuela also recognized that the filling of vacancies in
Administrative Matter. the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the
making of the appointments during the period of the
On February 26, 2010, the OSG also submitted its prohibition.[35]
comment, essentially stating that the incumbent President can
appoint the successor of Chief Justice Puno upon his Lastly, the OSG urges that there are now undeniably
retirement by May 17, 2010. compelling reasons for the incumbent President to appoint the
next Chief Justice, to wit: (a) a deluge of cases involving
The OSG insists that: (a) a writ of prohibition cannot sensitive political issues is quite expected; [36] (b) the Court acts
issue to prevent the JBC from performing its principal function as the Presidential Electoral Tribunal (PET), which, sitting en
under the Constitution to recommend appointees in the banc, is the sole judge of all contests relating to the election,
Judiciary; (b) the JBCs function to recommend is a continuing returns, and qualifications of the President and Vice President
process, which does not begin with each vacancy or end with and, as such, has the power to correct manifest errors on the
each nomination, because the goal is to submit the list of statement of votes (SOV) and certificates of canvass
nominees to Malacaang on the very day the vacancy (COC);[37] (c) if history has shown that during ordinary
arises;[26] the JBC was thus acting within its jurisdiction when it times the Chief Justice was appointed immediately upon the
commenced and set in motion the process of selecting the occurrence of the vacancy, from the time of the effectivity of
nominees to be submitted to the President for the position of the Constitution, there is now even more reason to appoint the
Chief Justice to be vacated by Chief Justice Puno; [27] (c) next Chief Justice immediately upon the retirement of Chief
petitioner Sorianos theory that it is the Supreme Court, not the Justice Puno;[38] and (d) should the next Chief Justice come
President, who has the power to appoint the Chief Justice, is from among the incumbent Associate Justices of the Supreme
incorrect, and proceeds from his misinterpretation of the Court, thereby causing a vacancy, it also becomes incumbent
phrase members of the Supreme Court found in Section 9, upon the JBC to start the selection process for the filling up of
Article VIII of the Constitution as referring only to the Associate the vacancy in accordance with the constitutional mandate.[39]
Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of On March 9, 2010, the Court admitted the following
nominees to the President, considering that its duty to prepare comments/oppositions-in-intervention, to wit:
the list of at least three nominees is unqualified, and the
submission of the list is a ministerial act that the JBC is (a) The opposition-in-intervention
mandated to perform under the Constitution; as such, the JBC, dated February 22, 2010 of Atty. Peter
the nature of whose principal function is executive, is not Irving Corvera (Corvera);[40]
vested with the power to resolve who has the authority to
appoint the next Chief Justice and, therefore, has no discretion (b) The opposition-in-intervention
to withhold the list from the President; [29] and (e) a writ dated February 22, 2010 of Atty.
of mandamus cannot issue to compel the JBC to include or Christian Robert S. Lim (Lim);
exclude particular candidates as nominees, considering that
there is no imperative duty on its part to include in or exclude (c) The opposition-in-intervention
from the list particular individuals, but, on the contrary, the dated February 23, 2010 of Atty.
JBCs determination of who it nominates to the President is an Alfonso V. Tan, Jr. (Tan);
exercise of a discretionary duty.[30]
(d) The comment/opposition-in-
The OSG contends that the incumbent President intervention dated March 1, 2010 of
may appoint the next Chief Justice, because the prohibition the National Union of Peoples
under Section 15, Article VII of the Constitution does not apply Lawyers (NUPL);
to appointments in the Supreme Court. It argues that any
vacancy in the Supreme Court must be filled within 90 days (e) The opposition-in-intervention
from its occurrence, pursuant to Section 4(1), Article VIII of the dated February 25, 2010 of Atty.
Constitution; [31] that in their deliberations on the mandatory Marlou B. Ubano (Ubano);
period for the appointment of Supreme Court Justices, the
framers neither mentioned nor referred to the ban against (f) The opposition-in-intervention
midnight appointments, or its effects on such period, or vice dated February 25, 2010 of Integrated
versa;[32] that had the framers intended the prohibition to apply Bar of the Philippines-Davao del Sur
to Supreme Court appointments, they could have easily Chapter and its Immediate Past
expressly stated so in the Constitution, which explains why the President, Atty. Israelito P. Torreon
prohibition found in Article VII (Executive Department) was not (IBP- Davao del Sur);
written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or (g) The opposition-in-intervention
limitations on the Presidents power to appoint members of the dated February 26, 2010 of Atty.
Supreme Court to ensure its independence from political Mitchell John L. Boiser (Boiser);
vicissitudes and its insulation from political pressures, [33] such
as stringent qualifications for the positions, the establishment (h)The consolidated comment/opposition-
of the JBC, the specified period within which the President shall in-intervention dated February 26,
appoint a Supreme Court Justice. 2010 of BAYAN Chairman Dr.
Carolina P. Araullo; BAYAN Secretary
The OSG posits that although Valenzuela involved General Renato M. Reyes, Jr.;
the appointment of RTC Judges, the situation now refers to the Confederation for Unity, Recognition
appointment of the next Chief Justice to which the prohibition and Advancement of Government
does not apply; that, at any rate, Valenzuela even recognized Employees (COURAGE) Chairman
that there might be the imperative need for an appointment Ferdinand Gaite; Kalipunan ng
during the period of the ban, like when the membership of the Damayang Mahihirap (KADAMAY)
FINALS CONSTITUTION I ACJUCO 124
Secretary General Gloria Arellano;
Alyansa ng Nagkakaisang Kabataan
ng Samayanan Para sa Kaunlaran
(ANAKBAYAN) Chairman Ken
Leonard Ramos; Tayo ang Pag-asa
Convenor Alvin Peters; League of
Filipino Students (LFS) Chairman
James Mark Terry Lacuanan Ridon;
National Union of Students of the
Philippines (NUSP) Chairman Einstein
Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae
Alquisola; and Student Christian
Movement of the Philippines (SCMP)
Chairman Ma. Cristina Angela
Guevarra (BAYAN et al.);
(i) The opposition-in-intervention
dated March 3, 2010 of Walden F.
Bello and Loretta Ann P. Rosales
(Bello et al.); and
(j) The consolidated comment/opposition-
in-intervention dated March 4, 2010 of
the Women Trial Lawyers
Organization of the Philippines
(WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty.
Belleza Alojado Demaisip; Atty.
Teresita Gandionco-Oledan; Atty. Ma.
Verena Kasilag-Villanueva; Atty.
Marilyn Sta. Romana; Atty. Leonila de
Jesus; and Atty. Guinevere de Leon
(WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castros petition
was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making
any appointments from March 10, 2010 until June 30, 2010,
including the appointment of the successor of Chief Justice
Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the
constitutional prohibition is already in effect. Tan adds that the
prohibition against midnight appointments was applied by the
Court to the appointments to the Judiciary made by then
President Ramos, with the Court holding that the duty of the
President to fill the vacancies within 90 days from occurrence
of the vacancies (for the Supreme Court) or from the
submission of the list (for all other courts) was not an excuse
to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP,
BAYAN et al., and Bello et al. oppose the insistence
that Valenzuela recognizes the possibility that the President
may appoint the next Chief Justice if exigent circumstances
warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even
an Associate Justice does not cause epic damage or absolute
disruption or paralysis in the operations of the Judiciary. They
insist that even without the successor of Chief Justice Puno
being appointed by the incumbent President, the Court is
allowed to sit and adjudge en banc or in divisions of three, five
or seven members at its discretion; that a full membership of
the Court is not necessary; that petitioner De Castros fears are
unfounded and baseless, being based on a mere possibility,
the occurrence of which is entirely unsure; that it is not in the
national interest to have a Chief Justice whose appointment is
unconstitutional and, therefore, void; and that such a situation
will create a crisis in the judicial system and will worsen an
already vulnerable political situation.
ice is imperative for the stability of the judicial system and the
political situation in the country when the election-related
questions reach the Court as false, because there is an
existing law on filling the void brought about by a vacancy in
the office of Chief Justice; that the law is Section 12 of the
Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporaryor
an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice
is not only provided for by law, but is also dictated by practical
necessity; that the practice was intended to be enshrined in the
1987 Constitution, but the Commissioners decided not to write
it in the Constitution on account of the settled practice; that the
practice was followed under the 1987 Constitution, when, in
1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Associate Justice Andres Narvasa assumed the position as
Acting Chief Justice prior to his official appointment as Chief
Justice; that said filling up of a vacancy in the office of the Chief
Justice was acknowledged and even used by analogy in the
case of the vacancy of the Chairman of the Commission on
Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the
history of the Supreme Court has shown that this rule of
succession has been repeatedly observed and has become a
part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim
maintain that the Omnibus Election Code penalizes as an
election offense the act of any government official who
appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or
employee during the period of 45 days before a regular
election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or
instrumentality, including the President; that for the incumbent
President to appoint the next Chief Justice upon the retirement
of Chief Justice Puno, or during the period of the ban under
the Omnibus Election Code, constitutes an election offense;
that even an appointment of the next Chief Justice prior to the
election ban is fundamentally invalid and without effect
because there can be no appointment until a vacancy occurs;
and that the vacancy for the position can occur only by May 17,
2010.
Intervenor Boiser adds that De Castros prayer to
compel the submission of nominees by the JBC to the
incumbent President is off-tangent because the position of
Chief Justice is still not vacant; that to speak of a list, much
more a submission of such list, before a vacancy occurs is
glaringly premature; that the proposed advance appointment
by the incumbent President of the next Chief Justice will be
unconstitutional; and that no list of nominees can be submitted
by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article
VII makes no distinction between the kinds of appointments
made by the President; and that the Court, in Valenzuela, ruled
that the appointments by the President of the two judges during
the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII
of the 1987 Constitution does not apply only to the
appointments in the Executive Department, but also to judicial
appointments, contrary to the submission of PHILCONSA; that
Section 15 does not distinguish; and that Valenzuela already
interpreted the prohibition as applicable to judicial
appointments.
Intervenor WTLOP further posits that petitioner
Sorianos contention that the power to appoint the Chief Justice
is vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member
of the Supreme Court as contemplated under Section 9, Article
VIII; and that, at any rate, the term members was interpreted
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to
refer to the Chief Justice and the Associate Justices of the
FINALS CONSTITUTION I ACJUCO 125
Supreme Court; that PHILCONSAs prayer that the Court pass
a resolution declaring that persons who manifest their interest
as nominees, but with conditions, shall not be considered
nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the relief
prayed for highlights the lack of merit of PHILCONSAs petition;
that the role of the JBC cannot be separated from the
constitutional prohibition on the President; and that the Court
must direct the JBC to follow the rule of law, that is, to submit
the list of nominees only to the next duly elected President after
the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the
JBC because it is neither a judicial nor a quasi-judicial
body has no duty under the Constitution to resolve the
question of whether the incumbent President can appoint a
Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to
the strict limitations under Section 15, Article VII; that should
the JBC defer submission of the list, it is not arrogating unto
itself a judicial function, but simply respecting the clear
mandate of the Constitution; and that the application of the
general rule in Section 15, Article VII to the Judiciary does not
violate the principle of separation of powers, because said
provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et
al. state that the JBCs act of nominating appointees to the
Supreme Court is purely ministerial and does not involve the
exercise of judgment; that there can be no default on the part
of the JBC in submitting the list of nominees to the President,
considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the
commencement of the process of screening of applicants to fill
the vacancy in the office of the Chief Justice only begins from
the retirement on May 17, 2010, for, prior to this date, there is
no definite legal basis for any party to claim that the submission
or non-submission of the list of nominees to the President by
the JBC is a matter of right under law.
The main question presented in all the filings
herein because it involves two seemingly conflicting provisions
of the Constitution imperatively demands the attention and
resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests
on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary,
particularly this Court, an institution that has been
unnecessarily dragged into the harsh polemics brought on by
the controversy; second, to settle once and for all the doubt
about an outgoing Presidents power to appoint to the Judiciary
within the long period starting two months before the
presidential elections until the end of the presidential term;
and third, to set a definite guideline for the JBC to follow in the
discharge of its primary office of screening and nominating
qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not
the petitioners have locus standi.
Black defines locus standi as a right of appearance
in a court of justice on a given question. [41] In public or
constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the
ever-present need to regulate the invocation of the intervention
of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and
offices involved in public service. It is required, therefore, that
the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.:[42]
The question on legal standing is
whether such parties have alleged such
a personal stake in the outcome of the
controversy as to assure that concrete
adverseness which sharpens the
presentation of issues upon which the
court so largely depends for
illumination of difficult constitutional
questions.[43] Accordingly, it has been
held that the interest of a person
assailing the constitutionality of a
statute must be direct and personal. He
must be able to show, not only that the
law or any government act is invalid, but
also that he sustained or is in imminent
danger of sustaining some direct injury
as a result of its enforcement, and not
merely that he suffers thereby in some
indefinite way. It must appear that the
person complaining has been or is
about to be denied some right or
privilege to which he is lawfully entitled
or that he is about to be subjected to
some burdens or penalties by reason of
the statute or act complained of.[44]
It is true that as early as in 1937, in People v.
Vera,[45] the Court adopted the direct injury test for determining
whether a petitioner in a public action had locus standi. There,
the Court held that the person who would assail the validity of
a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as
a result. Vera was followed in Custodio v. President of the
Senate,[46] Manila Race Horse Trainers Association v. De la
Fuente,[47] Anti-Chinese League of the Philippines v.
Felix,[48] and Pascual v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement
of locus standi, being a mere procedural technicality, can be
waived by the Court in the exercise of its discretion. For
instance, in 1949, in Araneta v. Dinglasan,[50] the Court
liberalized the approach when the cases had transcendental
importance. Some notable controversies whose petitioners did
not pass the direct injury test were allowed to be treated in the
same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on
Elections,[52] this Court decided to resolve the issues raised by
the petition due to their far-reaching implications, even if the
petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been
adopted in
several notable cases, permitting ordinary citizens, legislators
, and civic
organizations to bring their suits involving the constitutionality
or validity of laws, regulations, and rulings. [53]
However, the assertion of a public right as a
predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general.
Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that
he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public
right.
FINALS CONSTITUTION I ACJUCO 126
Quite often, as here, the petitioner in a public action
sues as a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the
petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now
allows both citizen and taxpayer standing in
public actions. The distinction was first laid
down in Beauchamp v. Silk,[55] where it was
held that the plaintiff in a taxpayers suit is
in a different category from the plaintiff in a
citizens suit. In the former, the plaintiff is
affected by the expenditure of public
funds, while in the latter, he is but the
mere instrument of the public
concern. As held by the New York
Supreme Court in People ex rel Case v.
Collins:[56] In matter of mere public right,
howeverthe people are the real partiesIt
is at least the right, if not the duty, of
every citizen to interfere and see that a
public offence be properly pursued and
punished, and that a public grievance be
remedied. With respect to taxpayers
suits, Terr v. Jordan[57] held that the right
of a citizen and a taxpayer to maintain
an action in courts to restrain the
unlawful use of public funds to his
injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano
(G.R. No. 191032) and Peralta (G.R. No. 191149) all assert
their right as citizens filing their petitions on behalf of the public
who are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim
standing as taxpayers, with Soriano averring that he is affected
by the continuing proceedings in the JBC, which involve
unnecessary, if not, illegal disbursement of public funds. [59]
PHILCONSA alleges itself to be a non-stock, non-
profit organization existing under the law for the purpose of
defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the
Court has recognized its legal standing to file cases on
constitutional issues in several cases. [60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a
citizen of the Philippines, a member of the Philippine Bar
engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the
Interim Batasang Pambansa and the Regular Batasang
Pambansa, and former member of the Faculty of the College
of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the
Governors of the Integrated Bar of the Philippines (IBP)
for Southern Luzon and Eastern Visayas. They allege that they
have the legal standing to enjoin the submission of the list of
nominees by the JBC to the President, for [a]n adjudication of
the proper interpretation and application of the constitutional
ban on midnight appointments with regard to respondent JBCs
function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that
obedience and respect for the Constitution is upheld, most
especially by government offices, such as respondent JBC,
who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution. They further allege
that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the
Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of
the body that has constitutional supervision and authority over
them and other members of the legal profession.[61]
The Court rules that the petitioners have each
demonstrated adequate interest in the outcome of the
controversy as to vest them with the requisite locus standi. The
issues before us are of transcendental importance to the
people as a whole, and to the petitioners in particular. Indeed,
the issues affect everyone (including the petitioners),
regardless of ones personal interest in life, because they
concern that great doubt about the authority of the incumbent
President to appoint not only the successor of the retiring
incumbent Chief Justice, but also others who may serve in the
Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion
to waive the requirement of legal standing in favor of any
petitioner when the matter involved has transcendental
importance, or otherwise requires a liberalization of the
requirement.[62]
Yet, if any doubt still lingers about the locus standi of
any petitioner, we dispel the doubt now in order to remove any
obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from
discharging our solemn duty by reason alone of an obstacle
more technical than otherwise. In Agan, Jr. v.Philippine
International Air Terminals Co., Inc.,[63] we pointed out:
Standing is a peculiar concept in constitutional law because in
some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other
government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest. But even if, strictly
speaking, the petitioners are not covered by the definition, it is
still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised. [64]
Justiciability
Intervenor NUPL maintains that there is no actual
case or controversy that is appropriate or ripe for adjudication,
considering that although the selection process commenced
by the JBC is going on, there is yet no final list of nominees;
hence, there is no imminent controversy as to whether such list
must be submitted to the incumbent President, or reserved for
submission to the incoming President.
Intervenor Tan raises the lack of any actual
justiciable controversy that is ripe for judicial determination,
pointing out that petitioner De Castro has not even shown that
the JBC has already completed its selection process and is
now ready to submit the list to the incumbent President; and
that petitioner De Castro is merely presenting a hypothetical
scenario that is clearly not sufficient for the Court to exercise
its power of judicial review.
Intervenors Corvera and Lim separately opine that
De Castros petition rests on an overbroad and vague allegation
of political tension, which is insufficient basis for the Court to
exercise its power of judicial review.
Intervenor BAYAN et al. contend that the petitioners
are seeking a mere advisory opinion on what the JBC and the
President should do, and are not invoking any issues that are
justiciable in nature.
Intervenors Bello et al. submit that there exist no
conflict of legal rights and no assertion of opposite legal claims
in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the
divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues
FINALS CONSTITUTION I ACJUCO 127
published in the daily newspapers are matters of paramount
and transcendental importance to the bench, bar and general
public; that PHILCONSA fails not only to cite any legal duty or
allege any failure to perform the duty, but also to indicate what
specific action should be done by the JBC; that Mendoza does
not even attempt to portray the matter as a controversy or
conflict of rights, but, instead, prays that the Court should rule
for the guidance of the JBC; that the fact that the Court
supervises the JBC does not automatically imply that the Court
can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the
subordinate officer or body must first act, and if such action is
not in accordance with prescribed rules, then, and only then,
may the person exercising oversight order the action to be
redone to conform to the prescribed rules; that the Mendoza
petition does not allege that the JBC has performed a specific
act susceptible to correction for being illegal or
unconstitutional; and that the Mendoza petition asks the Court
to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare
the state of the law in the absence of an actual case or
controversy.
We hold that the petitions set forth an actual case or
controversy that is ripe for judicial determination. The reality is
that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them
will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC
began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the
list of nominees to the incumbent outgoing President or to the
next President, makes the situation ripe for judicial
determination, because the next steps are the public interview
of the candidates, the preparation of the short list of
candidates, and the interview of constitutional experts, as may
be needed.
A part of the question to be reviewed by the Court is
whether the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is,
after May 17, 2010). Another part is, of course, whether the
JBC may resume its process until the short list is prepared, in
view of the provision of Section 4(1), Article VIII, which
unqualifiedly requires the President to appoint one from the
short list to fill the vacancy in the Supreme Court (be it the Chief
Justice or an Associate Justice) within 90 days from the
occurrence of the vacancy.
The ripeness of the controversy for judicial
determination may not be doubted. The challenges to the
authority of the JBC to open the process of nomination and to
continue the process until the submission of the list of
nominees; the insistence of some of the petitioners to compel
the JBC through mandamus to submit the short list to the
incumbent President; the counter-insistence of the intervenors
to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be
submitted instead to the next President; the strong position that
the incumbent President is already prohibited under Section
15, Article VII from making any appointments, including those
to the Judiciary, starting on May 10, 2010 until June 30, 2010;
and the contrary position that the incumbent President is not
so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the
controversy, considering that for some the short list must be
submitted before the vacancy actually occurs by May 17,
2010. The outcome will not be an abstraction, or a merely
hypothetical exercise. The resolution of the controversy will
surely settle with finality the nagging questions that are
preventing the JBC from moving on with the process that it
already began, or that are reasons persuading the JBC to
desist from the rest of the process.
We need not await the occurrence of the vacancy
by May 17, 2010 in order for the principal issue to ripe for
judicial determination by the Court. It is enough that one
alleges conduct arguably affected with a constitutional interest,
but seemingly proscribed by the Constitution. A reasonable
certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for bringing
a challenge, provided the Court has sufficient facts before it to
enable it to intelligently adjudicate the issues. [65]Herein, the
facts are not in doubt, for only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in
conflict.
The first, Section 15, Article VII (Executive
Department), provides:
Section 15. Two months
immediately before the next presidential
elections and up to the end of his 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.
The other, Section 4 (1), Article VIII (Judicial
Department), states:
Section 4. (1). The Supreme Court
shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three,
five, or seven Members. Any vacancy shall
be filled within ninety days from the
occurrence thereof.
In the consolidated petitions, the petitioners, with the
exception of Soriano, Tolentino and Inting, submit that the
incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments
under Section 15, Article VII does not extend to appointments
in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the
Constitutional Commission reveal that the framers devoted
time to meticulously drafting, styling, and arranging the
Constitution. Such meticulousness indicates that the
organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the
framers, but purposely made to reflect their intention and
manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of
which embody the allocation of the awesome powers of
government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a
FINALS CONSTITUTION I ACJUCO 128
true recognition of the principle of separation of powers that
underlies the political structure, as Constitutional
Commissioner Adolfo S. Azcuna (later a worthy member of the
Court) explained in his sponsorship speech:
We have in the political part of this
Constitution opted for the separation of
powers in government because we believe
that the only way to protect freedom and
liberty is to separate and divide the
awesome powers of government. Hence,
we return to the separation of powers
doctrine and the legislative, executive and
judicial departments.[66]
As can be seen, Article VII is devoted to the
Executive Department, and, among others, it lists the powers
vested by the Constitution in the President. The presidential
power of appointment is dealt with in Sections 14, 15 and 16
of the Article.
Article VIII is dedicated to the Judicial Department
and defines the duties and qualifications of Members of the
Supreme Court, among others. Section 4(1) and Section 9 of
this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section
9 states that the appointment of Supreme Court Justices can
only be made by the President upon the submission of a list of
at least three nominees by the JBC; Section 4(1) of the Article
mandates the President to fill the vacancy within 90 days from
the occurrence of the vacancy.
Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous ordering
of the provisions. They would have easily and surely written
the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals
that the prohibition against the President or Acting President
making appointments within two months before the next
presidential elections and up to the end of the Presidents or
Acting Presidents term does not refer to the Members of the
Supreme Court.
Although Valenzuela[67] came to hold that the
prohibition covered even judicial appointments, it cannot be
disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the
confirmation made to the JBC by then Senior Associate Justice
Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being
intended to apply to the appointments to the Judiciary, which
confirmation Valenzuela even expressly mentioned, should
prevail.
Relevantly, Valenzuela adverted to the intent of the framers in
the genesis of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional
Commission
The journal of the Commission
which drew up the present Constitution
discloses that the original proposal was to
have an eleven-member Supreme Court.
Commissioner Eulogio Lerum wanted to
increase the number of Justices to fifteen.
He also wished to ensure that that number
would not be reduced for any appreciable
length of time (even only temporarily), and
to this end proposed that any vacancy must
be filled within two months from the date
that the vacancy occurs. His proposal to
have a 15-member Court was not initially
adopted. Persisting however in his desire
to make certain that the size of the Court
would not be decreased for any substantial
period as a result of vacancies, Lerum
proposed the insertion in the provision
(anent the Courts membership) of the
same mandate that IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED
WITHIN TWO MONTHS FROM
OCCURRENCE THEREOF. He later
agreed to suggestions to make the period
three, instead of two, months. As thus
amended, the proposal was approved. As
it turned out, however, the Commission
ultimately agreed on a fifteen-member
Court. Thus it was that the section fixing
the composition of the Supreme Court
came to include a command to fill up
any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed
out that that instruction that any
vacancy shall be filled within ninety days
(in the last sentence of Section 4 (1) of
Article VIII) contrasts with the prohibition in
Section 15, Article VII, which is couched in
stronger negative language - that a
President or Acting President shall
not make appointments
The commission later approved a
proposal of Commissioner Hilario G.
Davide, Jr. (now a Member of this Court) to
add to what is now Section 9 of Article VIII,
the following paragraph: WITH RESPECT
TO LOWER COURTS, THE PRESIDENT
SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE
SUBMISSION OF THE LIST (of nominees
by the Judicial and Bar Council to the
President). Davide stated that his purpose
was to provide a uniform rule for lower
courts. According to him, the 90-day period
should be counted from submission of the
list of nominees to the President in view of
the possibility that the President might
reject the list submitted to him and the JBC
thus need more time to submit a new one.
On the other hand, Section 15,
Article VII - which in effect deprives the
President of his appointing power two
months immediately before the next
presidential elections up to the end ofhis
term - was approved without discussion.[68]
However, the reference to the records of the Constitutional
Commission did not advance or support the result
in Valenzuela. Far to the contrary, the records disclosed the
express intent of the framers to enshrine in the Constitution,
upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within
90 days from its occurrence, which
even Valenzuela conceded.[69] The exchanges
during deliberations of the Constitutional Commission
on October 8, 1986 further show that the filling of a vacancy in
FINALS CONSTITUTION I ACJUCO 129
the Supreme Court within the 90-day period was
a true mandate for the President, viz:
MR. DE CASTRO. I understand that
our justices now in the Supreme Court,
together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second
sentence of this subsection reads: Any
vacancy shall be filled within ninety
days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a
mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right.
That is borne out of the fact that in the
past 30 years, seldom has the Court had
a complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of
the word shall an imperative, operating to impose a duty that
may be enforced[71] should not be disregarded. Thereby,
Sections 4(1) imposes on the President the imperative duty to
make an appointment of a Member of the Supreme Court
within 90 days from the occurrence of the vacancy. The failure
by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII
for the President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot
be defeated by mere judicial interpretation in Valenzuela to the
effect that Section 15, Article VII prevailed because it was
couched in stronger negative language. Such interpretation
even turned out to be conjectural, in light of the records of the
Constitutional Commissions deliberations on Section 4 (1),
Article VIII.
How Valenzuela justified its pronouncement and
result is hardly warranted. According to an authority on
statutory construction:[72]
xxx the court should seek to avoid
any conflict in the provisions of the statute
by endeavoring to harmonize and reconcile
every part so that each shall be effective. It
is not easy to draft a statute, or any other
writing for that matter, which may not in
some manner contain conflicting
provisions. But what appears to the reader
to be a conflict may not have seemed so to
the drafter. Undoubtedly, each provision
was inserted for a definite reason. Often by
considering the enactment in its entirety,
what appears to be on its face a conflict
may be cleared up and the provisions
reconciled.
Consequently, that construction
which will leave every word operative will
be favored over one which leaves some
word or provision meaningless because of
inconsistency. But a word should not be
given effect, if to do so gives the statute a
meaning contrary to the intent of the
legislature. On the other hand, if full effect
cannot be given to the words of a statute,
they must be made effective as far as
possible. Nor should the provisions of a
statute which are inconsistent be
harmonized at a sacrifice of the legislative
intention. It may be that two provisions are
irreconcilable; if so, the one which
expresses the intent of the law-makers
should control. And the arbitrary rule has
been frequently announced that where
there is an irreconcilable conflict between
the different provisions of a statute, the
provision last in order of position will
prevail, since it is the latest expression of
the legislative will. Obviously, the rule is
subject to deserved criticism. It is seldom
applied, and probably then only where an
irreconcilable conflict exists between
different sections of the same act, and after
all other means of ascertaining the
meaning of the legislature have been
exhausted. Where the conflict is between
two statutes, more may be said in favor of
the rules application, largely because of the
principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit
and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent
of the Constitutional Commission to have Section 4 (1), Article
VIII stand independently of any other provision, least of all one
found in Article VII. It further ignored that the two provisions
had no irreconcilable conflict, regardless of Section 15, Article
VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that
defeats the intent of the framers.[73]
Consequently, prohibiting the incumbent President from
appointing a Chief Justice on the premise that Section 15,
Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be
allowed to last after its false premises have been exposed. [74] It
will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently,
Valenzuela now deserves to be quickly sent to the dustbin of
the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well
to all other appointments in the Judiciary.
There is no question that one of the reasons
underlying the adoption of Section 15 as part of Article VII was
to eliminate midnight appointments from being made by
an outgoing Chief Executive in the mold of the appointments
dealt with in the leading case of Aytona v. Castillo.[75] In fact,
in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15,
Article VII is directed against two types of
appointments: (1) those made for buying
votes and (2) those made for partisan
considerations. The first refers to those
appointments made within the two months
preceding a Presidential election and are
similar to those which are declared election
offenses in the Omnibus Election
Code, viz.:
xxx
The second type of appointments
prohibited by Section 15, Article VII
consists of the so-
FINALS CONSTITUTION I ACJUCO 130
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. Said the Court:
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.
As indicated, the Court recognized
that there may well be appointments to
important positions which have to be made
even after the proclamation of the new
President. Such appointments, so long
as they are few and so spaced as to
afford some assurance of deliberate
action and careful consideration of the
need for the appointment and the
appointees qualifications, can be made
by the outgoing President. Accordingly,
several appointments made by President
Garcia, which were shown to have been
well considered, were upheld.
Section 15, Article VII has a
broader scope than the Aytona ruling. It
may not unreasonably be deemed to
contemplate not only midnight
appointments those made obviously for
partisan reasons as shown by their
number and the time of their making but
also appointments presumed made for
the purpose of influencing the outcome
of the Presidential election.
On the other hand, the exception in
the same Section 15 of Article VII allowing
appointments to be made during the period
of the ban therein provided is much
narrower than that recognized
in Aytona. The exception allows only the
making of temporary appointments
to executive positions when continued
vacancies will prejudice public service or
endanger public safety. Obviously, the
article greatly restricts the appointing
power of the President during the period of
the ban.
Considering the respective reasons
for the time frames for filling vacancies in
the courts and the restriction on the
President's power of appointment, it is this
Courts view that, as a general proposition,
in case of conflict, the former should yield
to the latter. Surely, the prevention of vote-
buying and similar evils outweighs the need
for avoiding delays in filling up of court
vacancies or the disposition of some
cases. Temporary vacancies can abide the
period of the ban which, incidentally and as
earlier pointed out, comes to exist only
once in every six years.Moreover, those
occurring in the lower courts can be filled
temporarily by designation. But prohibited
appointments are long-lasting and
permanent in their effects. They may, as
earlier pointed out, in fact influence the
results of elections and, for that reason,
their making is considered an election
offense.[76]
Given the background and rationale for the
prohibition in Section 15, Article VII, we have no doubt that the
Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers
did not need to extend the prohibition to appointments in the
Judiciary, because their establishment of the JBC and their
subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process
of the JBC ensured that there would no longer
be midnight appointments to the Judiciary. If midnight
appointments in the mold of Aytona were made in haste and
with irregularities, or made by an outgoing Chief Executive in
the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship, [77] the
appointments to the Judiciary made after the establishment of
the JBC would not be suffering from such defects because of
the JBCs prior processing of candidates. Indeed, it is axiomatic
in statutory construction that the ascertainment of the purpose
of the enactment is a step in the process of ascertaining the
intent or meaning of the enactment, because the reason for the
enactment must necessarily shed considerable light on the law
of the statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose,
and the court should seek to carry out this purpose rather than
to defeat it.[78]
Also, the intervention of the JBC eliminates the
danger that appointments to the Judiciary can be made for the
purpose of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the
time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people
influential with the President could not always be assured of
being recommended for the consideration of the President,
because they first had to undergo the vetting of the JBC and
pass muster there. Indeed, the creation of the JBC
was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on
Appointments. This insulating process was absent from
the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of
Section 15, Article VII to appointments in the Judiciary was
FINALS CONSTITUTION I ACJUCO 131
confirmed by then Senior Associate Justice Regalado to the
JBC itself when it met on March 9, 1998 to discuss the
question raised by some sectors about the constitutionality of
xxx appointments to the Court of Appeals in light of the
forthcoming presidential elections. He assured that on the
basis of the (Constitutional) Commissions records, the election
ban had no application to appointments to the Court of
Appeals.[79] This confirmation was accepted by the JBC, which
then submitted to the President for consideration the
nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no
weight and due consideration to the confirmation of Justice
Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than
on the deliberations of the Constitutional Commission. Much of
the unfounded doubt about the Presidents power to appoint
during the period of prohibition in Section 15, Article VII could
have been dispelled since its promulgation on November 9,
1998, had Valenzuela properly acknowledged and relied on
the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e.,
Section 14, Section15, and Section 16) concern the appointing
powers of the President.
Section 14 speaks of the power of
the succeeding President to revoke appointments made by an
Acting President,[81] and evidently refers only to appointments
in the Executive Department. It has no application to
appointments in the Judiciary,
because temporary or acting appointments can only
undermine the independence of the Judiciary due to their being
revocable at will.[82] The letter and spirit of the Constitution
safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the
Judiciary. Prior to their mandatory retirement or resignation,
judges of the first and second level courts and the Justices of
the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by
impeachment.
Section 16 covers only the presidential appointments
that require confirmation by the Commission on Appointments.
Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on
Appointments after the requirement was removed from the
1973 Constitution. Yet, because of Section 9 of Article VIII, the
restored requirement did not include appointments to the
Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously
of the same character, in that they affect the power of the
President to appoint. The fact that Section 14 and Section 16
refer only to appointments within the Executive Department
renders conclusive that Section 15 also applies only to the
Executive Department. This conclusion is consistent with the
rule that every part of the statute must be interpreted with
reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient
to the general intent of the whole enactment. [84] It is absurd to
assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended
Section 15 to cover all kinds of presidential appointments. If
that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily and
surely inserted a similar prohibition in Article VIII, most likely
within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that
Section 15 extends to appointments to the Judiciary further
undermines the intent of the Constitution of ensuring the
independence of the Judicial Department from the Executive
and Legislative Departments. Such a holding will tie the
Judiciary and the Supreme Court to the fortunes or misfortunes
of political leaders vying for the Presidency in a presidential
election. Consequently, the wisdom of having the new
President, instead of the current incumbent President, appoint
the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the
appointment by the incumbent President does not run the
same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect
that there will be no need for the incumbent President to
appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII,
because anyway there will still be about 45 days of the 90 days
mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only
on the coming vacancy occurring from Chief Justice Punos
retirement by May 17, 2010. It ignores the need to apply
Section 4(1) to every situation of a vacancy in the Supreme
Court.
The argument also rests on the fallacious
assumption that there will still be time remaining in the 90-day
period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections
to be held on the second Monday of May, letting the elections
fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of
the prohibition is 115 days. If such elections are held on May
14, the period of the prohibition is 109 days. Either period of
the prohibition is longer than the full mandatory 90-day period
to fill the vacancy in the Supreme Court. The result is that there
are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of
109 days and the 90-day mandatory period for appointments)
in which the outgoing President would be in no position to
comply with the constitutional duty to fill up a vacancy in the
Supreme Court. It is safe to assume that the framers of the
Constitution could not have intended such an absurdity. In fact,
in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1),
Article VIII, the framers neither discussed, nor mentioned, nor
referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period,
or vice versa. They did not need to, because they never
intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we
can even raise a doubt on whether a JBC list is necessary at
all for the President any President to appoint a Chief Justice if
the appointee is to come from the ranks of the sitting justices
of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme
Court xxx shall be appointed by the
President from a list of at least three
nominees prepared by the Judicial and Bar
Council for any vacancy. Such
appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the
Supreme Court from the outside, that is, a non-member of the
Court aspiring to become one. It speaks of candidates for the
Supreme Court, not of those who are already members or
FINALS CONSTITUTION I ACJUCO 132
sitting justices of the Court, all of whom have previously been
vetted by the JBC.
Can the President, therefore, appoint any of the
incumbent Justices of the Court as Chief Justice?
The question is not squarely before us at the
moment, but it should lend itself to a deeper analysis if and
when circumstances permit. It should be a good issue for the
proposed Constitutional Convention to consider in the light of
Senate President Juan Ponce Enriles statement that the
President can appoint the Chief Justice from among the sitting
justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the
President to appoint the successor of Chief Justice Puno,
considering that the Judiciary Act of 1948 can still address the
situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of
Chief Justice. In case of a vacancy in the
office of Chief Justice of the Supreme Court
or of his inability to perform the duties and
powers of his office, they shall devolve
upon the Associate Justice who is first in
precedence, until such disability is
removed, or another Chief Justice is
appointed and duly qualified. This provision
shall apply to every Associate Justice who
succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the
event of a vacancy in the office of the Chief Justice, or in the
event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers
of the office of the Chief Justice shall devolve upon the
Associate Justice who is first in precedence until a new Chief
Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this
peripheral matter after the Court has hereby resolved the
question of consequence, we do not find it amiss to confront
the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the
Supreme Court is composed of a Chief Justice and 14
Associate Justices, who all shall be appointed by the President
from a list of at least three nominees prepared by the JBC for
every vacancy, which appointments require no confirmation by
the Commission on Appointments. With reference to the Chief
Justice, he or she is appointed by the President as Chief
Justice, and the appointment is never in an acting capacity.
The express reference to a Chief Justice abhors the idea that
the framers contemplated an Acting Chief Justice to head the
membership of the Supreme Court. Otherwise, they would
have simply written so in the Constitution. Consequently, to
rely on Section 12 of the Judiciary Act of 1948 in order to
forestall the imperative need to appoint the next Chief Justice
soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief
Justice to be permanent, not one to be occupied in an acting
or temporary capacity. In relation to the scheme of things
under the present Constitution, Section 12 of the Judiciary Act
of 1948 only responds to a rare situation in which the new Chief
Justice is not yet appointed, or in which the incumbent Chief
Justice is unable to perform the duties and powers of the
office. It ought to be remembered, however, that it was enacted
because the Chief Justice appointed under the 1935
Constitution was subject to the confirmation of the Commission
on Appointments, and the confirmation process might take
longer than expected.
The appointment of the next Chief Justice by the
incumbent President is preferable to having the Associate
Justice who is first in precedence take over. Under the
Constitution, the heads of the Legislative and Executive
Departments are popularly elected, and whoever are elected
and proclaimed at once become the leaders of their respective
Departments. However, the lack of any appointed occupant of
the office of Chief Justice harms the independence of the
Judiciary, because the Chief Justice is the head of the entire
Judiciary. The Chief Justice performs functions absolutely
significant to the life of the nation. With the entire Supreme
Court being the Presidential Electoral Tribunal, the Chief
Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside
from its being mandatory for the incumbent President to make
within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno
be appointed by the next President.
Historically, under the present Constitution, there has
been no wide gap between the retirement and the resignation
of an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on
the other hand. As summarized in the comment of the OSG,
the chronology of succession is as follows:
1. When Chief Justice Claudio
Teehankee retired on April 18, 1988,
Chief Justice Pedro Yap was
appointed on the same day;
2. When Chief Justice Yap retired
on July 1, 1988, Chief Justice Marcelo
Fernan was appointed on the same
day;
3. When Chief Justice Fernan resigned
on December 7, 1991, Chief Justice
Andres Narvasa was appointed the
following day, December 8, 1991;
4. When Chief Justice Narvasa retired
on November 29, 1998, Chief Justice
Hilario Davide, Jr. was sworn into
office the following early morning
of November 30, 1998;
5. When Chief Justice Davide retired on
December 19, 2005, Chief Justice
Artemio Panganiban was appointed
the next day, December 20, 2005; and
6. When Chief Justice Panganiban
retired on December 6, 2006, Chief
Justice Reynato S. Puno took his oath
as Chief Justice
at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the
President?
Mandamus shall issue when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act
FINALS CONSTITUTION I ACJUCO 133
that the law specifically enjoins as a duty resulting from an
office, trust, or station.[86] It is proper when the act against
which it is directed is one addressed to the discretion of the
tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way. [87]
For mandamus to lie, the following requisites must be
complied with: (a) the plaintiff has a clear legal right to the act
demanded; (b) it must be the duty of the defendant to perform
the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by
law; (d) the act to be performed is ministerial, not discretionary;
and (e) there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the
JBC to submit a list of at least three nominees to the President
for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the
principal function of recommending
appointees to the Judiciary. xxx
Section 9. The Members of the
Supreme Court and judges of lower courts
shall be appointed by the President from a
list of at least three nominees prepared
by the Judicial and Bar Council for every
vacancy. Such appointments need no
confirmation.
For the lower courts, the President
shall issue the appointments within
ninety days from the submission of the
list.
However, Section 4(1) and Section 9, Article VIII,
mandate the President to fill the vacancy in the Supreme Court
within 90 days from the occurrence of the vacancy, and within
90 days from the submission of the list, in the case of the lower
courts. The 90-day period is directed at the President, not at
the JBC. Thus, the JBC should start the process of selecting
the candidates to fill the vacancy in the Supreme
Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to
submit to the President the list of nominees to fill a vacancy in
the Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of
the vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to
make the appointment. For the JBC to do so will be
unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the
ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC
before making the appointment.
The duty of the JBC to submit a list of
nominees before the start of the Presidents mandatory 90-day
period to appoint is ministerial, but its selection of the
candidates whose names will be in the list to be submitted to
the President lies within the discretion of the JBC. The object
of the petitions for mandamus herein should only refer to the
duty to submit to the President the list of nominees for every
vacancy in the Judiciary, because in order to constitute
unlawful neglect of duty, there must be an unjustified delay in
performing that duty.[88] For mandamus to lie against the JBC,
therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting
the list to the President.
The distinction between a ministerial act and a
discretionary one has been delineated in the following manner:
The distinction between a ministerial and
discretionary act is well delineated.
A purely ministerial act or duty is one
which an officer or tribunal performs in
a given state of facts, in a prescribed
manner, in obedience to the mandate of
a legal authority, without regard to or
the exercise of his own judgment upon
the propriety or impropriety of the act
done. If the law imposes a duty upon a
public officer and gives him the right to
decide how or when the duty shall be
performed, such duty is
discretionary and not ministerial.
The duty is ministerial only when the
discharge of the same requires neither
the exercise of official discretion or
judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions
for mandamus and to issue a writ of mandamus against the
JBC. The actions for that purpose are premature, because it is
clear that the JBC still has until May 17, 2010, at the latest,
within which to submit the list of nominees to the President to
fill the vacancy created by the compulsory retirement of Chief
Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion
is ineluctable that only the President can appoint the Chief
Justice. Hence, Sorianos petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening
in the process of nominating the successor of Chief Justice
Puno, lacks merit.
On the other hand, the petition for prohibition in G.R.
No. 191342 is similarly devoid of merit. The challenge mounted
against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex
officio members from the Senate and the House of
Representatives, thereby prejudicing the chances of some
candidates for nomination by raising the minimum number of
votes required in accordance with the rules of the JBC, is not
based on the petitioners actual interest, because they have not
alleged in their petition that they were nominated to the JBC to
fill some vacancies in the Judiciary. Thus, the petitioners
lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions
for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for
being premature;
2. Dismisses the petitions for prohibition in G.R.
No. 191032 and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and,
accordingly, directs the Judicial and Bar Council:
FINALS CONSTITUTION I ACJUCO 134

(a) To resume its proceedings for the

nomination of candidates to fill the
vacancy to be created by the
compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for

the position of Chief Justice;

(c) To submit to the incumbent President

the short list of nominees for the
position of Chief Justice on or before
May 17, 2010; and

(d) To continue its proceedings for

the nomination of candidates to fill
other vacancies in the Judiciary and
submit to the President the short list of
nominees corresponding thereto in
accordance with this decision.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 135

G.R. No. 203372 June 16, 2015 Atty. Venturanza is a Petition for Review on
Certiorari,3 assailing the Decision4 dated 31 August 2012 and
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner, Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No.
123659. G.R. No. 209138 filed by Villanueva and Rosquita is
vs.
OFFICE OF THE PRESIDENT and HON. SOLICITOR a Petition for Certiorari,6 seeking to nullify the Decision7 dated
GENERAL JOSE ANSELMO I. CADIZ, Respondents. 28 August 2013 of the CA in CA-G.R. SP Nos. 123662,
123663, and 123664.8 Villanueva and Rosquita filed a Petition-
in-Intervention in the consolidated cases before the CA. G.R.
x-----------------------x No. 212030 is a Petition for Review on Certiorari, 9 assailing the
Decision10 dated 31 August 2012 of the CA in CAG.R. SP No.
G.R. No. 206290 123664 and Resolution11 dated 7 April 2014 of the CA in
CAG.R. SP Nos. 123662, 123663, and 123664. 12
ATTY. DINDO G. VENTURANZA, Petitioner,
vs. Facts of the Cases
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her
capacity as the Secretary of the Department of Justice, Prior to the conduct of the May 2010 elections, then President
CLARO A. ARELLANO, in his capacity as the Prosecutor Gloria Macapagal-Arroyo (President Macapagal-Arroyo)
General, and RICHARD ANTHONY D. FADULLON, in his issued more than 800 appointments to various positions in
capacity as the Officer-in-Charge of the Office of the City several government offices.
Prosecutor of Quezon City,Respondents.
The ban on midnight appointments in Section 15, Article VII of
x-----------------------x the 1987 Constitution reads:

G.R. No. 209138 Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President
IRMA A. VILLANUEVA and FRANCISCA B. shall not make appointments, except temporary appointments
ROSQUITA, Petitioners, to executive positions when continued vacancies therein will
vs. prejudice public service or endanger public safety.
COURT OF APPEALS and THE OFFICE OF THE
PRESIDENT, Respondents. Thus, for purposes of the 2010 elections, 10 March 2010 was
the cutoff date for valid appointments and the next day, 11
x-----------------------x March 2010, was the start of the ban on midnight
appointments. Section 15, Article VII of the 1987 Constitution
recognizes as an exception to the ban on midnight
G.R. No. 212030 appointments only "temporary appointments to executive
positions when continued vacancies therein will prejudice
EDDIE U. TAMONDONG, Petitioner, public service or endanger public safety." None of the
vs. petitioners claim that their appointments fall under this
EXECUTIVE SECRETARY PAQUITO N. OCHOA, exception.
JR., Respondent.
Appointments
DECISION
G.R. No. 203372
CARPIO, J.:
The paper evidencing Atty. Velicaria-Garafil's appointment as
The present consolidated cases involve four petitions: G.R. State Solicitor II at the OSG was dated 5 March 2010.13 There
No. 203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. was a transmittal letter dated 8 March 2010 of the appointment
Velicaria-Garafil), who was appointed State Solicitor II at the paper from the Office of the President (OP), but this transmittal
Office of the Solicitor General (OSG), as petitioner; G.R. No. letter was received by the Malacañang Records Office (MRO)
206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), only on 13 May 2010. There was no indication as to the OSG's
who was appointed Prosecutor IV (City Prosecutor) of Quezon date of receipt of the appointment paper. On 19 March 2010,
City, as petitioner; G.R. No. 209138 with Irma A. Villanueva the OSG's Human Resources Department called up Atty.
(Villanueva), who was appointed Administrator for Visayas of Velicaria-Garafil to schedule her oath-taking. Atty. Velicaria-
the Board of Administrators of the Cooperative Development Garafil took her oath of office as State Solicitor II on 22 March
Authority (CDA), and Francisca B. Rosquita (Rosquita), who 2010 and assumed her position on 6 April 2010.
was appointed Commissioner of the National Commission of
Indigenous Peoples (NCIP), as petitioners; and G.R. No. G.R. No. 206290
212030 with Atty. Eddie U. Tamondong (Atty. Tamondong),
who was appointed member of the Board of Directors of the
Subic Bay Metropolitan Authority (SBMA), as petitioner. All The paper evidencing Atty. Venturanza's appointment as
petitions question the constitutionality of Executive Order No. Prosecutor IV (City Prosecutor) of Quezon City was dated 23
2 (EO 2) for being inconsistent with Section 15, Article VII of February 2010.14 It is apparent, however, that it was only on 12
the 1987 Constitution. March 2010 that the OP, in a letter dated 9 March 2010,
transmitted Atty. Venturanza's appointment paper to then
Department of Justice (DOJ) Secretary Alberto C.
Petitioners seek the :reversal of the separate Decisions of the Agra.15 During the period between 23 February and 12 March
Court of Appeals (CA) that dismissed their petitions and upheld 2010, Atty. Venturanza, upon verbal advice from Malacañang
the constitutionality of EO 2. G.R. No. 203372 filed by Atty. of his promotion but without an official copy of his appointment
Velicaria-Garafil is a Petition for Review on paper, secured clearances from the Civil Service Commission
Certiorari,1 assailing the Decision2 dated 31 August 2012 of (CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza
the CA in CA-G.R. SP No. 123662. G.R. No. 206290 filed by
FINALS CONSTITUTION I ACJUCO 136

took his oath of office on 15 March 2010, and assumed office
on the same day.
G.R. No. 209138
The paper evidencing Villanueva's appointment as
Administrator for Visayas of the Board of Administrators of the
CDA was dated 3 March 2010.19 There was no transmittal
letter of the appointment paper from the OP. Villanueva took
her oath of office on 13 April 2010.
Issuance of EO 2
On 30 June 2010, President Benigno S. Aquino III (President
Aquino) took his oath of office as President of the Republic of
the Philippines. On 30 July 2010, President Aquino issued EO
2 recalling, withdrawing, and revoking appointments issued by
President Macapagal-Arroyo which violated the constitutional
ban on midnight appointments.
The entirety of EO 2 reads:

The paper evidencing Rosquita's appointment as EXECUTIVE ORDER NO. 2

Commissioner, representing Region I and the Cordilleras, of
the NCIP was dated 5 March 2010.20 Like Villanueva, there RECALLING, WITHDRAWING, AND REVOKING
was no transmittal letter of the appointment paper from the OP. APPOINTMENTS ISSUED BY THE PREVIOUS
Rosquita took her oath of office on 18 March 2010. G.R. No.
ADMINISTRATION IN VIOLATION OF THE
212030 CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS,
AND FOR OTHER PURPOSES.
The paper evidencing Atty. Tamondong's appointment as
member, representing the private sector, of the SBMA Board
WHEREAS, Sec. 15, Article VII of the 1987 Constitution
of Directors was dated 1 March 2010.21 Atty. Tamondong provides that "Two months immediately before the next
admitted that the appointment paper was received by the
presidential elections and up to the end of his term, a President
Office of the SBMA Chair on 25 March 201022 and that he took or Acting President shall not make appointments, except
his oath of office on the same day.23 He took another oath of temporary appointments to executive positions when
office on 6 July 2010 as "an act of extra caution because of the continued vacancies therein will prejudice public service or
rising crescendo of noise from the new political mandarins endanger public safety."; WHEREAS, in the case of "In re:
against the so-called 'midnight appointments."'24 Appointments dated March 30, 1998 of Hon. Mateo Valenzuela
and Hon. Vallarta as Judges of the Regional Trial Court of
To summarize, the pertinent dates for each petitioner are as Branch 62 of Bago City and Branch 24 of Cabanatuan City,
follows: respectively" (A.M. No. 98-5-01-SC Nov. 9, 1998), the
Supreme Court interpreted this provision to mean that the
President is neither required to make appointments nor
G.R. No. Date of Date of Date Date Assumpti allowed to do so during the two months immediately before the
Appointm Transmit of of on of next presidential elections and up to the end of her term. The
ent Letter tal Letter Recei Oath Office only known exceptions to this prohibition are (1) temporary
pt by of appointments in the executive positions when continued
MRO Offic vacancies will prejudice public service or endanger public
e safety and in the light of the recent Supreme Court decision in
the case of De Castro, et al. vs. JBC and PGMA, G.R. No.
22 191002, 17 March 2010, (2) appointments to the Judiciary;
203372
13 Marc
(Atty. 5 March 8 March 6 April
May h
Velicaria- 2010 2010 2010 WHEREAS, Section 261 of the Omnibus Election Code
2010 201
Garafil) provides that:
0

15
206290 12 "Section 261. Prohibited Acts.-The following shall be guilty of
23 Marc
(Atty. 9 March Marc 15 March an election offense:
February h
Venturan 2010 h 2010
2010 201
za) 2010
0 (g) Appointments of new employees,
creation of new position, promotion, or
13 giving salary increases. - During the period
209138
3 March 4 May April of forty-five days before a regular election
(Villanuev
2010 2010 201 and thirty days before a special election.
a)
0

18 (1) Any head, official or appointing officer of

209138 13 Marc a government office, agency or
5 March instrumentality, whether national or local,
(Rosquita May h
2010 including government-owned or controlled
) 2010 201
0 corporations, who appoints or hires any
new employee, whether provisional,
25 temporary or casual, or creates and fills any
Marc new position, except upon prior authority to
h the Commission. The Commission shall not
212030 201 grant the authority sought unless it is
(Atty. 1 March 0 satisfied that the position to be filled is
Tamondo 2010 and essential to the proper functioning of the
ng) 6 office or agency concerned, and that the
July position shall not be filled in a manner that
201 may influence the election.
0
FINALS CONSTITUTION I ACJUCO 137
As an exception to the foregoing
provisions, a new employee may be
appointed in the case of urgent need:
Provided, however, that notice of the
appointment shall be given to the
Commission within three days from the
date of the appointment. Any appointment
or hiring in violation of this provision shall
be null and void.
(2) Any government official who promotes
or gives any increase of salary or
remuneration or privilege to any
government official or employee, including
those in government-owned or controlled
corporations.";
WHEREAS, 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 and which deprives the new
administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an
appointment is deemed complete only upon acceptance of the
appointee;
WHEREAS, in order to strengthen the civil service system, it is
necessary to uphold the principle that appointments to the civil
service must be made on the basis of merit and fitness, it is
imperative to recall, withdraw, and revoke all appointments
made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of
the powers vested in me by the Constitution as President of
the Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following
appointments made by the former President and other
appointing authorities in departments, agencies, offices, and
instrumentalities, including government-owned or controlled
corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010,
including all appointments bearing dates
prior to March 11, 2010 where the
appointee has accepted, or taken his oath,
or assumed public office on or after March
11, 2010, except temporary appointments
in the executive positions when continued
vacancies will prejudice public service or
endanger public safety as may be
determined by the appointing authority.
(b) Those made prior to March 11, 2010,
but to take effect after said date or
appointments to office that would be vacant
only after March 11, 2010.
(c) Appointments and promotions made
during the period of 45 days prior to the
May 10, 2010 elections in violation of
Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under
Section 1, are hereby recalled, withdrawn, and revoked. The
positions covered or otherwise affected are hereby declared
vacant.
SECTION 3. Temporary designations. - When necessary to
maintain efficiency in public service and ensure the continuity
of government operations, the Executive Secretary may
designate an officer-in-charge (OIC) to perform the duties and
discharge the responsibilities of any of those whose
appointment has been recalled, until the replacement of the
OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances,
orders, rules and regulations or part thereof inconsistent with
the provisions of this Executive Order are hereby repealed or
modified accordingly.
SECTION 5. Separability Clause. - If any section or provision
of this executive order shall be declared unconstitutional or
invalid, the other sections or provision not affected thereby
shall remain in full force and effect.
SECTION 6. Effectivity. - This Executive order shall take effect
immediately.
DONE in the City of Manila, this 30th day of July, in the year
Two Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as
Solicitor General (Sol. Gen. Cadiz). On 6 August 2010, Sol.
Gen. Cadiz instructed a Senior Assistant Solicitor General to
inform the officers and employees affected by EO 2 that they
were terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010
without any knowledge of her termination. She was made to
return the office-issued laptop and cellphone, and was told that
her salary ceased as of 7 August 2010. On 12 August 2010,
Atty. Velicaria-Garafil was informed that her former secretary
at the OSG received a copy of a memorandum on her behalf.
The memorandum, dated 9 August 2010, bore the subject
"Implementation of Executive Order No. 2 dated 30 July 2010"
and was addressed to the OSG's Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No.
193327) before this Court on 1 September 2010. The petition
prayed for the nullification of EO 2, and for her reinstatement
as State Solicitor II without loss of seniority, rights and
privileges, and with full backwages from the time that her salary
was withheld.26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No. 556. DOJ
Order No. 556, issued by DOJ Secretary Leila M. De Lima
FINALS CONSTITUTION I ACJUCO 138
(Sec. De Lima), designated Senior Deputy State Prosecutor
Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-
Charge of the Office of the City Prosecutor in Quezon City. In
a letter to Sec. De Lima dated 15 September 2010, Atty.
Venturanza asked for clarification of his status, duties, and
functions since DOJ Order No. 556 did not address the same.
Atty. Venturanza also asked for a status quo ante order to
prevent Pros. Fadullon ·from usurping the position and
functions of the City Prosecutor of Quezon City. Atty.
Venturanza also wrote a letter to President Aquino on the same
day, and sought reaffirmation of his promotion as City
Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated
25 August 2010 from Sec. De Lima which directed him to
relinquish the office to which he was appointed, and to cease
from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition,
Mandamus with Urgent Prayer for Status Quo Ante Order,
Temporary Restraining Order and/or Preliminary Mandatory
Injunction (G.R. No. 193 867) before this Court on 14 October
2010.27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on
the basis of EO 2. On 3 August 2010, Villanueva and Rosquita
sought to intervene in G.R. No. 192991.28 On 1 October 2010,
Executive Secretary Paquito N. Ochoa, Jr. revoked Rosquita's
appointment as NCIP Commissioner.29 On 13 October 2010,
Villanueva and Rosquita notified this Court that they wanted to
intervene in Atty. Tamondong's petition (G.R. No. 192987)
instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of
Directors on 30 July 2010. He filed a petition for prohibition,
declaratory relief and preliminary injunction with prayer for
temporary restraining order (G.R. No. 192987) before this
Court on 9 August 2010. The petition prayed for the prohibition
of the implementation of EO 2, the declaration of his
appointment as legal, and the declaration of EO 2 as
unconstitutional.30
Referral to CA
There were several petitions31 and motions for
intervention32 that challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring
the petitions, motions for intervention, as well as various
letters, to the CA for further proceedings, including the
reception and assessment of the evidence from all parties. We
defined the issues as follows:
1. Whether the appointments of the petitioners and
intervenors were midnight appointments within the
coverage of EO 2;
2. Whether all midnight appointments, including
those of petitioners and intervenors, were invalid;
3 . Whether the appointments of the petitioners and
intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in
accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on
Appointment.33
This Court gave the CA the authority to resolve all pending
matters and applications, and to decide the issues as if these
cases were originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different
petitions, the CA promulgated separate Decisions for the
petitions. The CA consistently ruled that EO 2 is constitutional.
The CA, however, issued different rulings as to the evaluation
of the circumstances of petitioners' appointments. In the cases
of Attys. Velicaria-Garafil and Venturanza, the CA stated that
the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty.
Tamondong, the CA explicitly stated that · the revocation of
their appointments was proper because they were midnight
appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662
on 31 August 2012. The CA ruled that EO 2 is not
unconstitutional. However, the CA relied on Sales v.
Carreon34 in ruling that the OP should evaluate whether Atty.
Velicaria-Garafil's appointment had extenuating circumstances
that might make it fall outside the ambit of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is]
DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT
unconstitutional.
The issue on whether or not to uphold petitioner's appointment
as State Solicitor II at the OSG is hereby referred to the Office
of the President which has the sole authority and discretion to
pass upon the same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-
G.R. SP No. 123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is
hereby DISMISSED. Executive Order No. 2 is hereby declared
NOT UNCONSTITUTIONAL. Accordingly, the revocation of
Atty. Eddie Tamondong's appointment as Director of Subic Bay
Metropolitan Authority is VALID for being a midnight
appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether
petitioners' appointments violate Section 15, Article VII of the
1987 Constitution, and (2) whether EO 2 is constitutional.
Ruling of the Court
FINALS CONSTITUTION I ACJUCO 139
The petitions have no merit. All of petitioners' appointments are
midnight appointments and are void for violation of Section 15,
Article VII of the 1987 Constitution. EO 2 is constitutional.
Villanueva and Rosquita, petitioners in G.R. No. 209138, did
not appeal the CA's ruling under Rule 45, but instead filed a
petition for certiorari under Rule 65. This procedural error alone
warrants an outright dismissal of G.R. No. 209138. Even if it
were correctly filed under Rule 45, the petition should still be
dismissed for being filed out of time. 40 There was also no
explanation as to why they did not file a motion for
reconsideration of the CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all
these cases show that "none of the petitioners have shown that
their appointment papers (and transmittal letters) have been
issued (and released) before the ban."41The dates of receipt by
the MRO, which in these cases are the only reliable evidence
of actual transmittal of the appointment papers by President
Macapagal-Arroyo, are dates clearly falling during the
appointment ban. Thus, this ponencia and the dissent both
agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987
Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a
government post is a process that takes several steps to
complete. Any valid appointment, including one made under
the exception provided in Section 15, Article VII of the 1987
Constitution, must consist of the President signing an
appointee's appointment paper to a vacant office, the official
transmittal of the appointment paper (preferably through the
MRO), receipt of the appointment paper by the appointee, and
acceptance of the appointment by the appointee evidenced by
his or her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article
VII of the 1987 Constitution. Aytona defined "midnight or last
minute" appointments for Philippine
jurisprudence.1âwphi1 President Carlos P. Garcia submitted
on 29 December 1961, his last day in office, 350 appointments,
including that of Dominador R. Aytona for Central Bank
Governor. President Diosdado P. Macapagal assumed office
on 30 December 1961, and issued on 31 December 1961
Administrative Order No. 2 recalling, withdrawing, and
cancelling all appointments made by President Garcia after 13
December 1961 (President Macapagal's proclamation date).
President Macapagal appointed Andres V. Castillo as Central
Bank Governor on 1 January 1962. This Court dismissed
Aytona's quo warranto proceeding against Castillo, and upheld
Administrative Order No. 2's cancellation of the "midnight or
last minute" appointments. We wrote:
x x x But the issuance of 350 appointments in one night and
the planned induction of almost all of them 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.
x x x Now it is hard to believe that in signing 350 appointments
in one night, President Garcia exercised such "double care"
which was required and expected of him; and therefore, there
seems to be force to the contention that these appointments
fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim
appointments.
Under the circumstances above described, what with the
separation of powers, this Court resolves that it must decline
to disregard the Presidential .Administrative Order No. 2,
cancelling such "midnight" or "last-minute" appointments.
Of course the Court is . aware of many precedents to the effect
that once an appointment has been issued, it cannot be
reconsidered, specially where the appointee has qualified. But
none of them refer to mass ad interim appointments (three
hundred and fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On the
other hand, the authorities admit of exceptional circumstances
justifying revocation and if any circumstances justify
revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for
denying the power to revoke after the appointee has qualified
is the latter's equitable rights. Yet it is doubtful if such equity
might be successfully set up in the present situation,
considering the rush conditional appointments, hurried
maneuvers and other happenings detracting from that degree
of good faith, morality and propriety which form the basic
foundation of claims to equitable relief. The appointees, it might
be argued, wittingly or unwittingly cooperated with the
stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public
service. Needless to say, there are instances wherein not only
strict legality, but also fairness, justice and righteousness
should be taken into account.43
During the deliberations for the 1987 Constitution, then
Constitutional Commissioner (now retired Supreme Court
Chief Justice) Hilario G. Davide, Jr. referred to this Court's
ruling in Aytona and stated that his proposal seeks to prevent
a President, whose term is about to end, from preempting his
successor by appointing his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of
the term of the President, he may prolong his rule indirectly by
appointing people to these sensitive positions, like the
commissions, the Ombudsman, the judiciary, so he could
perpetuate himself in power even beyond his term of office;
therefore foreclosing the right of his successor to make
appointments to these positions. We should realize that the
term of the President is six years and under what we had voted
on, there is no reelection for him. Yet he can continue to rule
the country through appointments made about the end of his
term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or
an empirical value, on Aytona's intangible "stratagem to beat
the deadline," and also on the act of "preempting the
President's successor," which shows a lack of "good faith,
morality and propriety." Subject to only one exception,
appointments made during this period are thus automatically
prohibited under the Constitution, regardless of the appointee's
qualifications or even of the President's motives. The period for
prohibited appointments covers two months before the
elections until the end of the President's term. The
Constitution, with a specific exception, ended the President's
power to appoint "two months immediately before the next
presidential elections." For an appointment to be valid, it must
be made outside of the prohibited period or, failing that, fall
under the specified exception.
The dissent insists that, during the prohibited period, an
appointment should be viewed in its "narrow sense." In its
narrow sense, an appointment is not a process, but is only an
"executive act that the President unequivocally exercises
pursuant to his discretion."45 The dissent makes acceptance of
the appointment inconsequential. The dissent holds that an
FINALS CONSTITUTION I ACJUCO 140
appointment is void if the appointment is made before the ban
but the transmittal and acceptance are made after the ban.
However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made
before the ban even if the acceptance is made after the ban.
In short, the dissent allows an appointment to take effect during
the ban, as long as the President signed and transmitted the
appointment before the ban, even if the appointee never
received the appointment paper before the ban and accepted
the appointment only during the ban.
The dissent's view will lead to glaring absurdities. Allowing the
dissent's proposal that an appointment is complete merely
upon the signing of an appointment paper and its transmittal,
excluding the appointee's acceptance from the appointment
process, will lead to the absurdity that, in case of non-
acceptance, the position is considered occupied and nobody
else may be appointed to it. Moreover, an incumbent public
official, appointed to another public office by the President, will
automatically be deemed to occupy the new public office and
to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to
accept the new appointment. This will result in chaos in public
service.
Even worse, a President who is unhappy with an incumbent
public official can simply appoint him to another public office,
effectively removing him from his first office without due
process. The mere transmittal of his appointment paper will
remove the public official from office without due process and
even without cause, in violation of the Constitution.
The dissent's proferred excuse (that the appointee is not
alluded to in Section 15, Article VII) for its rejection of
"acceptance by the appointee" as an integral part of the
appointment process ignores the reason for the limitation of the
President's power to appoint, which is .to prevent the outgoing
President from continuing to rule the country indirectly after the
end of his term. The 1986 Constitutional Commission installed
a definite cut-off date as an objective and unbiased marker
against which this once-in-every-six-years prohibition should
be measured.
The dissent's assertion that appointment should be viewed in
its narrow sense (and is not a process) only during the
prohibited period is selective and time-based, and ignores well-
settled jurisprudence. For purposes of complying with the time
limit imposed by the appointment ban, the dissent' s position
cuts short the appointment process to the signing of the
appointment paper and its transmittal, excluding the receipt of
the appointment paper and acceptance of the appointment by
the appointee.
The President exercises only one kind of appointing power.
There is no need to differentiate the exercise of the President's
appointing power outside, just before, or during the
appointment ban. The Constitution allows the President to
exercise the power of appointment during the period not
covered by the appointment ban, and disallows (subject to an
exception) the President from exercising the power of
appointment during the period covered by the appointment
ban. The concurrence of all steps in the appointment process
is admittedly required for appointments outside the
appointment ban. There is no justification whatsoever to
remove acceptance as a requirement in the appointment
process for appointments just before the start of the
appointment ban, or during the appointment ban in
appointments falling within the exception. The existence of the
appointment ban makes no difference in the power of the
President to appoint; it is still the same power to appoint. In
fact, considering the purpose of the appointment ban, the
concurrence of all steps in the appointment process must be
strictly applied on appointments made just before or during the
appointment ban.
In attempting to extricate itself from the obvious consequences
of its selective application, the dissent glaringly contradicts
itself:
Thus, an acceptance is still necessary in order for the
appointee to validly assume his post and discharge the
functions of his new office, and thus make the appointment
effective. There can never be an instance where the
appointment of an incumbent will automatically result in his
resignation from his present post and his subsequent
assumption of his new position; or where the President can
simply remove an incumbent from his current office by
appointing him to another one. I stress that acceptance through
oath or any positive act is still indispensable before any
assumption of office may occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled
jurisprudence during the appointment ban, but apply the same
jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an
appointment is a process that begins with the selection by the
appointing power and ends with acceptance of the
appointment by the appointee, stands. As early as the 1949
case of Lacson v. Romero, this Court laid down the rule that
acceptance by the appointee is the last act needed to make an
appointment complete. The Court reiterated this rule in the
1989 case of Javier v. Reyes. In the 1996 case of Garces v.
Court of Appeals, this Court emphasized that acceptance by
the appointee is indispensable to complete an appointment.
The 1999 case of Bermudez v. Executive Secretary, cited in
the ponencia, affirms this standing rule in our jurisdiction, to
wit:
"The appointment is deemed complete once the last act
required of the appointing authority has been complied with
and its acceptance thereafter by the appointee in order to
render it effective."47
The dissent's assertion creates a singular exception to the
well-settled doctrine that appointment is a process that begins
with the signing of the appointment paper, followed by the
transmittal and receipt of the appointment paper, and becomes
complete with the acceptance of the appointment. The dissent
makes the singular exception that during the constitutionally
mandated ban on appointments, acceptance is not necessary
to complete the appointment. The dissent gives no reason why
this Court should make such singular exception, which is
contrary to the express provision of the Constitution prohibiting
the President from making appointments during the ban. The
dissent's singular exception will allow the President, during the
ban on appointments, to remove from office incumbents
without cause by simply appointing them to another office and
transmitting the appointment papers the day before the ban
begins, appointments that the incumbents cannot refuse
because their acceptance is not required during the ban.
Adoption by this Court of the dissent's singular exception will
certainly wreak havoc on the civil service.
The following elements should always concur in the making of
a valid (which should be understood as both complete and
effective) appointment: (1) authority to appoint and evidence of
the exercise of the authority; (2) transmittal of the appointment
paper and evidence of the transmittal; (3) a vacant position at
the time of appointment; and (4) receipt of the appointment
paper and acceptance of the appointment by the appointee
who possesses all the qualifications and none of the
disqualifications. The concurrence of all these elements should
FINALS CONSTITUTION I ACJUCO 141
always apply, regardless of when the appointment is made,
whether outside, just before, or during the appointment ban.
These steps in the appointment process should always concur
and operate as a single process. There is no valid appointment
if the process lacks even one step. And, unlike the dissent's
proposal, there is no need to further distinguish between an
effective and an ineffective appointment when an appointment
is valid.
Appointing Authority
The President's exercise of his power to appoint officials is
provided for in the Constitution and laws. 48 Discretion is an
integral part in the exercise of the power of
appointment.49 Considering that appointment calls for a
selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person
to fill an office constitutes the essence of his appointment," and
Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of
discretion." In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the
appointing power x x x x
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time limit
the choice of the President to only one candidate. Once the
power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications of
the officer, Congress may not abuse such power as to divest
the appointing authority, directly or indirectly, of his discretion
to pick his own choice. Consequently, when the qualifications
prescribed by Congress can only be met by one individual,
such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular
restriction on the power of appointment. 50
Transmittal
It is not enough that the President signs the appointment
paper. There should be evidence that the President intended
the appointment paper to be issued. It could happen that an
appointment paper may be dated and signed by the President
months before the appointment ban, but never left his locked
drawer for the entirety of his term. Release of the appointment
paper through the MRO is an unequivocal act that signifies the
President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of
1958, Governing the Organization and Functions of the
Executive Office and General Matters of Procedure Therein.
Initially called the Records Division, the MRO functioned as an
administrative unit of the Executive Office. Memorandum
Order No. 1 assigned the following functions:
a. Receive, record and screen all incoming
correspondence, telegrams, documents and papers,
and
(1) Forward those of a personal and
unofficial nature to the President's Private
Office; and
(2) Distribute those requiring action within
the Office or requiring staff work prior to
presentation to the President to the
appropriate units within the Office.
b. Follow up on correspondence forwarded to entities
outside the Office to assure that prompt replies are
made and copies thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except
personal papers of the President, and keep them in
such condition as to meet the documentary and
reference requirements of the Office.
e. Keep and maintain a filing and records system for
acts, memoranda, orders, circulars, correspondence
and other documents affecting the Office for ready
reference and use.
f. Issue certified true copies of documents on file in
the Division m accordance with prevailing standard
operating procedure.
g. Keep a separate record of communications or
documents of confidential nature.
h. Have custody of the Great Seal of the Republic of
the Philippines.
i. Prepare and submit to the approving authority,
periodic disposition schedules of non-current records
which have no historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist
other offices in the installation or improvement of
their records management system; and
k. Give instructions or deliver lectures and conduct
practical training to in-service trainees from other
offices and to students from educational institutions
on records management.51
The Records Division was elevated to an Office in
1975, with the addition of the following functions:
1. Maintain and control vital documents and
essential records to support the functions
of the OP in its day to day activities;
2. Monitor the flow of communications' from
their time of receipt up to their dispatch;
3. Service the documentary, information
and reference requirements of top
management and action officers of the OP,
and the reference and research needs of
FINALS CONSTITUTION I ACJUCO 142
other government agencies and the
general public;
4. Ensure the proper storage,
maintenance, protection and preservation
of vital and presidential documents, and the
prompt disposal of obsolete and valueless
records;
5. Effect the prompt
publication/dissemination of laws,
presidential issuances and classified
documents;
6. Provide computerized integrated records
management support services for easy
reference and retrieval of data and
information; and
7. To be able to represent the OP and OP
officials in response to Subpoena Duces
Tecum and Testificandum served by courts
and other investigating bodies.52
For purposes of verification of the appointment paper's
existence and authenticity, the appointment paper must bear
the security marks (i.e., handwritten signature of the President,
bar code, etc.) and must be accompanied by a transmittal letter
from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the
MRO, underscores the purpose of the release of papers
through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1,
series of 1958 to (1) receive, record, and screen all incoming
correspondence, telegrams, documents, and papers; (2) follow
up on correspondence forwarded to entities outside the Office
of the President ("OP") to assure that prompt replies are made
and copies thereof furnished the OP; (3) timely dispatch all
outgoing documents and correspondence; (4) have custody of
records of the OP, except personal papers of the President,
and keep them in such condition as to meet the documentary
and reference requirements of the Office; (5) keep and
maintain a filing and records system for Acts, Memoranda,
Orders, Circulars, correspondence, and other pertinent
documents for ready reference and use; ( 6) issue certified
copies of documents on file as requested and in accordance
with prevailing standard operating procedures; (7) maintain
and control vital documents and essential records to support
the OP in its day-to-day activities; (8) monitor the flow of
communications from the time of receipt up to their dispatch;
and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of
all documents emanating from Malacañang pursuant to its
mandate under Memorandum Order No. 1, Series of 1958. Is
the MRO required to follow a specific procedure in dispatching
outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment
paper signed by the President? A: Yes. It is observed for the
release of the original copy of the appointment paper signed
by the President.
Q: Can you briefly illustrate the procedure for the release of the
original copy of the appointment paper signed by the
President?
A: After an appointment paper is signed by the President, the
Office of the Executive Secretary (OES) forwards the
appointment paper bearing the stamp mark, barcode, and
hologram of the Office of the President, together with a
transmittal letter, to the MRO for official release. Within the
same day, the MRO sends the original copy of the appointment
paper together with the transmittal letter and a delivery receipt
which contains appropriate spaces for the name of the
addressee, the date released, and the date received by the
addressee. Only a photocopy of the appointment is retained for
the MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service
Guide, if any?
A: The MRO Service Guide was issued pursuant to
Memorandum Circular No. 35, Series of 2003 and
Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents
forwarded to the MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents
and correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today,
when is it officially released by the MRO to the department or
agency concerned?
A: The document is released within the day by the MRO if the
addressee is within Metro Manila. For example, in the case of
the appointment paper of Dindo Venturanza, the OES
forwarded to the MRO on March 12, 2010 his original
appointment paper dated February 23, 2010 and the
transmittal letter dated March 9, 2010 prepared by the OES.
The MRO released his appointment paper on the same day or
on March 12, 2010, and was also received by the DOJ on
March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or
department within Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to
established procedure, the MRO cannot issue a certified true
copy of the same because as far as the MRO is concerned, it
does not exist in our official records, hence, not an official
document from the Malacañang. There is no way of verifying
the document's existence and authenticity unless the
document is on file with the MRO even if the person who claims
to have in his possession a genuine document furnished to him
personally by the President. As a matter of fact, it is only the
MRO which is authorized to issue certified true copies of
documents emanating from Malacañan being the official
FINALS CONSTITUTION I ACJUCO 143
custodian and central repository of said documents. Not even
the OES can issue a certified true copy of documents prepared
by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the
Malacañang Palace. All incoming and outgoing documents
and correspondence must pass through the MRO. As the
official custodian, the MRO is in charge of the official release
of documents.
Q: What if an appointment paper was faxed by the Office of the
Executive Secretary to the appointee, is that considered an
official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of
the appointment paper to the appointee. That appointment
paper is, at best, only an "advanced copy."
Q: Assuming the MRO has already received the original
appointment paper signed by the President together with the
transmittal letter prepared by the OES, you said that the MRO
is bound to transmit these documents immediately, that is, on
the same day?
A: Yes.
Q: Were there instances when the President, after the original
appointment paper has already been forwarded to the MRO,
recalls the appointment and directs the MRO not to transmit
the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the
MRO, was there any instance when it was directed to recall the
appointment and retrieve the documents already transmitted?
A: Yes, but only in a few instances. Sometimes, when the MRO
messenger is already in transit or while he is already in the
agency or office concerned, we get a call to hold the delivery.
Q: You previously outlined the procedure governing the
transmittal of original copies of appointment papers to the
agency or office concerned. Would you know if this procedure
was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the
procedure has been followed. However, it was unusually
disregarded when the appointments numbering more than 800
were made by then President Arroyo in March 2010. The MRO
did not even know about some of these appointments and we
were surprised when we learned about them in the
newspapers.
Q: You mentioned that then President Arroyo appointed more
than 800 persons in the month of March alone. How were you
able to determine this number?
A: My staff counted all the appointments made by then
President An-oyo within the period starting January 2009 until
June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made
by then President Arroyo in the month of March 2010
compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and
the graphical representation thereof.
Q: If those documents will be shown to you, will you be able to
recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of
presidential appointees per month since January 2009 until
June 2010, and a graphical representation thereof. Can you go
over these documents and tell us the relation of these
documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I
prepared after we counted the appointments, as well as the
graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010,
how many appointment papers and transmittal letters were
released through the MRO?
A: Only 133 appointment papers were released through the
MRO.
Q: In some of these transmittal letters and appointment papers
which were not released through the MRO but apparently
through the OES, there were portions on the stamp of the OES
which supposedly indicated the date and time it was actually
received by the agency or office concerned but were curiously
left blank, is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery
receipt attached to the transmittal letter is filled out completely
because the dates when the original appointment papers were
actually received are very material. It is a standard operating
procedure for the MRO personnel to ask the person receiving
the documents to write his/her name, his signature, and the
date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment
papers apparently released by the OES are concerned, what
is the actual date when the agency or the appointee concerned
received it?
A: I cannot answer. There is no way of knowing when they
were actually received because the date and time were
deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the
transmittal letters or the appointment papers is the actual date
when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual
that the person who received these documents did not indicate
the date and time when it was received because these details
are very important.53
FINALS CONSTITUTION I ACJUCO 144
The MRO's exercise of its mandate does not prohibit the
President or the Executive Secretary from giving the
appointment paper directly to the appointee. However, a
problem may arise if an appointment paper is not coursed
through the MRO and the appointment paper is lost or the
appointment is questioned. The appointee would then have to
prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about
petitioners' appointment papers and their transmittal:
Your Honors, we respectfully request for the following
markings to be made:
1. A) The Transmittal Letter pertinent to the
appointment of petitioner DINDO VENTURANZA
dated March 9, 2010 as Exhibit "2-F" for the
respondents;
B) The delivery receipt attached in front of
the letter bearing the date March 12, 2010
as Exhibit "2-F-l";
C) The Appointment Paper of DINDO
VENTURANZA dated February 23, 2010
as Exhibit "2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the
appointment of CHELOY E. VELICARIA-GARAFIL
turned over to the MRO on May 13, 2010 consisting
of seven (7) pages as Exhibits "2-H," "2-H-l," "2-H-2,"
"2-H-3," "2-H-4," "2-H-5," and "2-H-6" respectively for
the respondents;
i. The portion with the name
"CHELOY E.
VELICARIAGARAFIL" as "State
Solicitor II, Office of the Solicitor
General" located on the first page
of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by
the Office of the Executive
Secretary located at the back of
the last page of the -letter
showing receipt by the DOJ with
blank spaces for the date and
time when it was actually
received as Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E.
VELICARIA-GARAFIL dated March 5,
2010 as Exhibit "2-I" for the respondents;
xxxx
4. A) The Transmittal Letter pertinent to the
appointment of EDDIE U. TAMONDONG dated 8
March 2010 but turned over to the MRO only on May
6, 2010 consisting of two (2) pages as Exhibits "2-L"
and "2-L-l" respectively for the respondents;
(a) The portion with the name "EDDIE U.
TAMONDONG" as "Member, representing
the Private Sector, Board of Directors" as
Exhibit "2-L-2";
(b) The portion rubber stamped by the
Office of the Executive Secretary located at
the back of the last page of the letter
showing receipt by Ma. Carissa O.
Coscuella with blank spaces for the date
and time when it was actually received as
Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the
appointments of x x x FRANCISCA
BESTOYONG-ROSQUITA dated March 8,
2010 but turned over to the MRO on May
13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name
"FRANCISCA BESTOYONGROSQUIT A"
as "Commissioner, Representing Region I
and the Cordilleras" as Exhibit "2-T-3·"
(d) The portion rubber stamped by the
Office of the Executive Secretary at the
back thereof showing receipt by Masli A.
Quilaman of NCIP-QC on March 15, 2010
as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as
Exhibit "2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the
appointment of IRMA A. VILLANUEVA as
Administrator for Visayas, Board of Administrators,
Cooperative Development Authority, Department of
Finance dated March 8, 2010 as Exhibit "2-X" for the
respondents;
(a) The portion rubber stamped by the
Office of the Executive Secretary at the
back thereof showing receipt by DOF with
blank spaces for the date and time when it
was actually received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA
dated March 3, 2010 as Exhibit "2-Y" for the
respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the MRO, supports
Dimaandal's counsel's manifestation that the transmittal of
petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was
appointed as State Solicitor II of the Office of the Solicitor
General, was her appointment paper released through the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the
MRO on May 13, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office
FINALS CONSTITUTION I ACJUCO 145
of the Executive Secretary, but the date and time as to when it
was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to
the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as
member of the Board of Directors of Subic Bay Metropolitan
Authority, was her [sic] appointment paper released through
the MRO?
A: No. His appointment paper dated March 1, 2010, with its
corresponding transmittal letter, was merely turned over to the
MRO on May 6, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office
of the Executive Secretary, but the date and time as to when it
was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to
the MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was
appointed as Commissioner of the National Commission on
Indigenous Peoples, representing Region 1 and the
Cordilleras, was her appointment paper released thru the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the
MRO on May 13, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office
of the Executive Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to
the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as
Administrator for Visayas of the Cooperative Development
Authority, was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its
corresponding transmittal letter, was merely turned over to the
MRO on May 4, 2010. The transmittal letter that was turned
over to the MRO was already stamped "released" by the Office
of the Executive Secretary, but the date and time as to when it
was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to
the MR0.55
The possession of the original appointment paper is not
indispensable to authorize an appointee to assume office. If it
were indispensable, then a loss of the original appointment
paper, which could be brought about by negligence, accident,
fraud, fire or theft, corresponds to a loss of the
office.56 However, in case of loss of the original appointment
paper, the appointment must be evidenced by a certified true
copy issued by the proper office, in this case the MRO. Vacant
Position
An appointment can be made only to a vacant office. An
appointment cannot be made to an occupied office. The
incumbent must first be legally removed, or his appointment
validly terminated, before one could be validly installed to
succeed him.57
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson)
occupied the post of provincial fiscal of Negros Oriental. He
was later nominated and confirmed as provincial fiscal of
Tarlac. The President nominated and the Commission on
Appointments confirmed Honorio Romero (Romero) as
provincial fiscal of Negros Oriental as Lacson's replacement.
Romero took his oath of office, but Lacson neither accepted
the appointment nor assumed office as provincial fiscal of
Tarlac. This Court ruled that Lacson remained as provincial
fiscal of Negros Oriental, having declined the appointment as
provincial fiscal of Tarlac. There was no vacancy to which
Romero could be legally appointed; hence, Romero's
appointment as provincial fiscal ofNegros Oriental vice Lacson
was invalid.
The appointment to a government post like that of provincial
fiscal to be complete involves several steps. First, comes the
nomination by the President. Then to make that nomination
valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is the
acceptance thereof by the appointee by his assumption of
office. The first two steps, nomination and confirmation,
constitute a mere offer of a post. They are acts of the Executive
and Legislative departments of the Government. But the last
necessary step to make the appointment complete and
effective rests solely with the appointee himself. He may or he
may not accept the appointment or nomination. As held in the
case of Borromeo vs. Mariano, 41 Phil. 327, "there is no power
in this country which can compel a man to accept an office."
Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can
compel him to do so, then he continues as provincial fiscal of
Negros Oriental and no vacancy in said office was created,
unless Lacson had been lawfully removed as such fiscal of
Negros Oriental.59
Paragraph (b ), Section 1 of EO 2 considered as midnight
appointments those appointments to offices that will only be
vacant on or after 11 March 2010 even though the
appointments are made prior to 11 March 2010. EO 2
remained faithful to the intent of Section 15, Article VII of the
1987 Constitution: the outgoing President is prevented from
continuing to rule the country indirectly after the end of his
term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment.
Assuming office and taking the oath amount to acceptance of
the appointment.60 An oath of office is a qualifying requirement
for a public office, a prerequisite to the full investiture of the
office.61
Javier v. Reyes62 is instructive in showing how acceptance is
indispensable to complete an appointment. On 7 November
1967, petitioner Isidro M. Javier (Javier) was appointed by then
Mayor Victorino B. Aldaba as the Chief of Police of Malolos,
FINALS CONSTITUTION I ACJUCO 146

Bulacan. The Municipal Council confirmed and approved

Javier's appointment on the same date. Javier took his oath of
office on 8 November 1967, and subsequently discharged the
rights, prerogatives, and duties of the office. On 3 January
1968, while the approval of Javier's appointment was pending
with the CSC, respondent Purificacion C. Reyes (Reyes), as
the new mayor of Malolos, sent to the . CSC a letter to recall
Javier's appointment. Reyes also designated Police Lt.
Romualdo F. Clemente as Officer-in-Charge of the police
department. The CSC approved Javier's appointment as
permanent on 2 May 1968, and even directed Reyes to
reinstate Javier. Reyes, on the other hand, pointed to the
appointment of Bayani Bernardo as Chief of Police of Malolos,
Bulacan on 4 September 1967. This Court ruled that Javier's
appointment prevailed over that of Bernardo. It cannot be said
that Bernardo accepted his appointment because he never
assumed office or took his oath.

Excluding the act of acceptance from the appointment process

leads us to the very evil which we seek to avoid (i.e., antedating
of appointments). Excluding the act of acceptance will only
provide more occasions to honor the Constitutional provision
in the breach. The inclusion of acceptance by the appointee as
an integral part of the entire appointment process prevents the
abuse of the Presidential power to appoint. It is relatively easy
to antedate appointment papers and make it appear that they
were issued prior to the appointment ban, but it is more difficult
to simulate the entire appointment process up until acceptance
by the appointee.

Petitioners have failed to show compliance with all four

elements of a valid appointment. They cannot prove with
certainty that their appointment papers were transmitted before
the appointment ban took effect. On the other hand, petitioners
admit that they took their oaths of office during the appointment
ban.

Petitioners have failed to raise any valid ground for the Court
to declare EO 2, or any part of it, unconstitutional.
Consequently, EO 2 remains valid and constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and

212030 are DENIED, and the petition in G.R. No. 209138 is
DISMISSED. The appointments of petitioners Atty. Cheloy E.
Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza
(G.R. No. 206290), Irma A. Villanueva, and Francisca B.
Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong
(G.R. No. 212030) are declared VOID. We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and
CONSTITUTIONAL.

SO ORDERED
FINALS CONSTITUTION I ACJUCO 147
[G.R. No. 131136. February 28, 2001]
CONRADO L. DE RAMA, petitioner, vs. THE COURT OF
APPEALS (NINTH DIVISION, THE CIVIL SERVICE
COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS,
MORELL AYALA, ARISTEO CATALLA, DAISY PORTA,
FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD
ORINDAY, MA. PETRA MUFFET LUCE, ELSA MARINO,
BERNARDITA MENDOZA, JANE MACATANGAY, ADELFO
GLODOVIZA and FLORINO RAMOS, respondents.
DECISION
YNARES-SANTIAGO, J.:
Upon his assumption to the position of Mayor of
Pagbilao, Quezon, petitioner Conrado L. de Rama wrote a
letter dated July 13, 1995 to the Civil Service Commission (or
CSC), seeking the recall of the appointments of fourteen (14)
municipal employees, namely:
NAME POSITION DATE OF
APPOINTMENT
Eladio Martinez Registration Officer I June 1, 1995
Divino de Jesus Bookbinder III June 1, 1995
Morell Ayala Accounting Clerk III June 16, 1995
Daisy Porta Clerk IV June 27, 1995
Aristeo Catalla Gen. Services Officer June 19, 1995
Elsa Marino Mun. Agriculturist June 19, 1995
Gracella Glory Bookkeeper II June 27, 1995
Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995
Felicidad Orindag Accounting Clerk II June 27, 1995
Bernardita Mendoza Agricultural Technologist June 27, 1995
Flordeliza Oriazel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florencio Ramos Utility Foreman June 27, 1995[1]
Petitioner de Rama justified his recall request on the
allegation that the appointments of the said employees were
midnight appointments of the former mayor, Ma. Evelyn S.
Abeja, done in violation of Article VII, Section 15 of the 1987
Constitution, which provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his 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. (Underscoring supplied)
While the matter was pending before the CSC, three of
the above-named employees, namely: Elsa Marino, Morell
Ayala, and Flordeliza Oriazel, filed with the CSC a claim for
payment of their salaries, alleging that although their
appointments were declared permanent by Conrado Gulim,
Director II of the CSC Field Office based in Quezon, petitioner
de Rama withheld the payment of their salaries and benefits
pursuant to Office Order No. 95-01, which was issued on June
30, 1995, wherein the appointments of the said fourteen (14)
employees were recalled.
Based on the documents submitted by Marino, Ayala and
Oriazel, the Legal and Quasi-Judicial Division of the CSC
issued an Order[2] finding that since the claimants-employees
had assumed their respective positions and performed their
duties pursuant to their appointments, they are therefore
entitled to receive the salaries and benefits appurtenant to their
positions. Citing Rule V, Section 10 of the Omnibus
Rules[3] which provides, in part, that if the appointee has
assumed the duties of the position, he shall be entitled to
receive his salary at once without awaiting the approval of his
appointment by the Commission, the CSC Legal and Quasi-
Judicial Division ruled that the said employees cannot be
deprived of their salaries and benefits by the unilateral act of
the newly-assumed mayor.
On April 30, 1996, the CSC denied petitioners request for
the recall of the appointments of the fourteen employees, for
lack of merit. The CSC also cited Rule V, Sections 9 and 10 of
the Omnibus Rules, and declared that the appointments of the
said employees were issued in accordance with pertinent
laws. Thus, the same were effective immediately, and cannot
be withdrawn or revoked by the appointing authority until
disapproved by the CSC. The CSC also dismissed petitioners
allegation that these were midnight appointments, pointing out
that the Constitutional provision relied upon by petitioner
prohibits only those appointments made by an outgoing
President and cannot be made to apply to local elective
officials. Thus, the CSC opined, the appointing authority can
validly issue appointments until his term has expired, as long
as the appointee meets the qualification standards for the
position.[4]
The CSC upheld the validity of the appointments on the
ground that they had already been approved by the Head of
the CSC Field Office in Lucena City, and for petitioners failure
to present evidence that would warrant the revocation or recall
of the said appointments.
Petitioner moved for the reconsideration of the CSCs
Resolution, as well as the Order of the CSC Legal and Quasi-
Judicial Division, averring that the CSC was without
jurisdiction: (1) to refuse to revoke the subject appointments;
and (2) to uphold the validity of said appointments, even
assuming that there was failure to present evidence that would
prove that these appointments contravened existing laws or
rules. He also posited that the CSC erred in finding the
appointments valid despite the existence of circumstances
showing that the same were fraudulently issued and
processed.
On November 21, 1996, the CSC denied petitioners
motion for reconsideration. The CSC reiterated its ruling that:
In the absence of any showing that these alleged midnight
appointments were defective in form and in substance, nor is
there evidence presented to show that subject appointments
were issued in contravention of law or rules, these
appointments are deemed valid and in effect.
xxxxxxxxx
Mayor de Rama failed to present evidence that subject
appointments should be revoked or recalled because of any of
the abovementioned grounds enumerated. As a matter of fact,
said appointments were even approved by the Head, Civil
FINALS CONSTITUTION I ACJUCO 148
Service Field Office, Lucena City when submitted for
attestation. In the absence of a clear showing that these
appointments were issued in violation of any of these grounds,
the Commission has no other recourse but to uphold their
validity. (Underscoring supplied)
The CSC also cited the Supreme Court ruling in the case
of Aquino v. Civil Service Commission[5] wherein this Court
held that:
It is well-settled that once an appointment is issued and the
moment the appointee assumes a position in the civil service
under a completed appointment, he acquires a legal, not
merely equitable right (to the position), which is protected not
only by statute, but also by the Constitution, and cannot be
taken away from him either by revocation of the appointment,
or by removal, except for cause, and with previous notice and
hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before
the Court of Appeals, arguing that the CSC arrived at the
erroneous conclusion after it ignored his supplement to the
consolidated appeal and motion for reconsideration wherein he
laid out evidence showing that the subject appointments were
obtained through fraud.
After reviewing the facts and issues raised by petitioner,
the Court of Appeals issued a Resolution[6] dated May 16, 1997
which held that there was no abuse of the power of
appointment on the part of the outgoing mayor.
The Court of Appeals further held that the fact that the
appointments of Marino, Ayala, Ramos, Mendoza and Glory
were made more than four (4) months after the publication of
the vacancies to which they were appointed is of no
moment. Setting aside petitioners suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that
every appointment to the local government service must be
made within four (4) months from publication of the
vacancies. It cited Section 80 of said Act, to wit:
Section 80. Public Notice of Vacancy: Personnel Selection
Board. (a) Whenever a local chief executive decides to fill a
vacant career position, there shall be posted notices of the
vacancy in at least three (3) conspicuous public places in the
local government unit concerned for a period of not less than
fifteen (15) days.
(b) There shall be established in every province, city or
municipality a personnel selection board to assist the local
chief executive in the judicious and objective selection of
personnel for employment as well as for promotion, and in the
formulation of such policies as would contribute to employee
welfare.
(c) The personnel selection board shall be headed by the local
sanggunian concerned. A representative of the Civil Service
Commission, if any, and the personnel officer of the local
government unit concerned shall be ex officio members of the
board.[7]
Likewise, neither did the CSCs own Circular Order No.
27, Section 7, Series of 1991, require that vacant positions
published in a government quarterly must be filled up before
the advent of the succeeding quarter.
On the basis of all the foregoing findings, the Court of
Appeals denied for lack of merit the petition for review.
Petitioner filed a motion for reconsideration arguing that
the appellate court erred in upholding the CSCs resolutions
despite the following defects:
I. No screening process and no criteria were adopted by the
Personnel Selection Board in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice
of vacancy as required by the rules and the law;
III. Merit and fitness requirements were not observed by the
selection board and by the appointing authority as required by
the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of
respondents.[8]
In a Resolution dated October 20, 1997, the Court of
Appeals denied the motion for reconsideration.
Hence, the instant petition for review on certiorari on the
following assigned errors:
I. THE PUBLIC RESPONDENT COURT OF APPEALS,
GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THE
CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE
APPOINTMENTS OF PRIVATE RESPONDENTS IN THE
FACE OF FRAUD AND VIOLATION OF RULES AND LAWS
ON ISSUANCE OF APPOINTMENTS.
II. THE PUBLIC RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR
GROUNDS NAMELY:
I. No screening process and no criteria were
adopted by the Personnel Selection Board
in nominating the respondents;
II. No posting in three (3) conspicuous public
places of notice of vacancy as required by
the rules and the law;
III. Merit and fitness requirements were not
observed by the selection board and by the
appointing authority as required by the Civil
Service rules;
IV. Petitioner has valid grounds to recall the
appointments of respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR
RECALL OF THE APPOINTMENTS BY THE PETITIONER
WERE PRECISELY THE VIOLATION OF LAWS AND
REGULATIONS ON ISSUANCE OF APPOINTMENTS AS
RAISED BEFORE THE RESPONDENT CIVIL SERVICE
COMMISSION.
Petitioner assails the findings of both the CSC and the
Court of Appeals for being contrary to law and not being
supported by the evidence on record.
This argument is too specious to be given credence. The
records reveal that when the petitioner brought the matter of
recalling the appointments of the fourteen (14) private
respondents before the CSC, the only reason he cited to justify
his action was that these were midnight appointments that are
forbidden under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and correctly so, that
the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that prohibits
local elective officials from making appointments during the
last days of his or her tenure. Petitioner certainly did not raise
FINALS CONSTITUTION I ACJUCO 149
the issue of fraud on the part of the outgoing mayor who made
the appointments. Neither did he allege that the said
appointments were tainted by irregularities or anomalies that
breached laws and regulations governing appointments. His
solitary reason for recalling these appointments was that they
were, to his personal belief, midnight appointments which the
outgoing mayor had no authority to make.
Even in petitioners consolidated appeal and motion for
reconsideration, he did not make any assertion that these
appointments were violative of civil service rules and
procedures. Indeed, he harped on the CSCs alleged lack of
jurisdiction to refuse to recall the subject appointments. After
first invoking the authority of the CSC to approve or affirm his
act, he then contradicted himself by arguing that the CSC had
no jurisdiction to do so, but only after the CSC had ruled that
the recall was without legal basis. He emphasized that he
alone has sole discretion to appoint and recall the appointment
of municipal employees, an authority which, he stressed, the
CSC cannot usurp. Yet, nowhere in said pleading did he cite
any other ground, much less present proof that would warrant
the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit
belatedly, petitioner filed a supplement to the appeal and
motion for reconsideration where, for the very first time, he
alleged that the appointments were fraught with irregularities
for failing to comply with CSC rules and
regulations. Nevertheless, the CSC overruled petitioners
assertions, holding that no new evidence had been presented
to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals,
petitioner questioned the CSCs conclusion because it had
ignored the allegations and documents he presented in the
supplement to his earlier consolidated appeal and motion for
reconsideration. He argued that these form part of the records
of the case and that the CSC erred in failing to consider the
assertions he raised therein. The appellate court, however,
agreed with the CSC when it ruled that the documents
presented by petitioner in the supplemental pleading did not
constitute new evidence that would convince the CSC to
reverse its earlier ruling.In fine, the Court of Appeals, as did the
CSC, simply dismissed petitioners allegations and documents
attached to the supplemental pleading for they did not
constitute new evidence that a court, board or tribunal may
entertain.
Herein lies the inconsistency of petitioners
arguments. He faults the Court of Appeals and the CSC for
ignoring his supplemental pleading, while at the same time
arguing that the grounds for recall such as violations of laws
and regulations on issuance of appointments are not new
issues because he had timely raised them before the CSC.
There is no question that parties may file supplemental
pleadings to supply deficiencies in aid of an original pleading,
but which should not entirely substitute the latter. [9] The
propriety and substance of supplemental pleadings are
prescribed under Rule 10, Section 6 of the 1997 Rules of Civil
Procedure, which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the
court may, upon reasonable notice and upon such terms as
are just, permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have
happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten
(10) days from notice of the order admitting the supplemental
pleading.
Supplemental pleadings must be with reasonable notice,
and it is discretionary upon the court or tribunal to allow the
same or not. Thus, the CSC was under no obligation to admit
the supplemental pleading, or even to consider the averments
therein.
Secondly, a supplemental pleading must state
transactions, occurrences or events which took place since the
time the pleading sought to be supplemented was filed. In the
instant case, petitioner alleged fraud and irregularities that
supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first
opportunity. They are not new events which petitioner could
not have originally included as grounds for the recall of the
appointments.
Accordingly, the CSC, as well as the Court of Appeals,
found that the allegations in his supplemental pleading did not
constitute new evidence that can be the proper subject of a
supplemental pleading.These were old facts and issues which
he failed to raise earlier. Consequently, the CSC and the Court
of Appeals did not err in refusing to give credence to the
supplemental pleading.
Be that as it may, these alleged irregularities were
considered by the CSC and the Court of Appeals as new
issues which were raised for the first time on appeal. It is rather
too late for petitioner to raise these issues for the first time on
appeal. It is well-settled that issues or questions of fact cannot
be raised for the first time on appeal. [10] We have consistently
held that matters, theories or arguments not brought out in the
original proceedings cannot be considered on review or appeal
where they are raised for the first time.[11] To consider the
alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in
the proceedings would amount to trampling on the basic
principles of fair play, justice and due process. [12]
The grounds for the recall of the appointments that
petitioner raised in his supplemental pleading to the
consolidated appeal and motion for reconsideration are that:
(1) the rules on screening of applicants based on adopted
criteria were not followed; (2) there was no proper posting of
notice of vacancy; and (3) the merit and fitness requirements
set by the civil service rules were not observed. These are
grounds that he could have stated in his order of recall, but
which he did not. Neither did he raise said grounds in his
original appeal, but only by way of a supplemental
pleading. Failure of the petitioner to raise said grounds and to
present supporting documents constitute a waiver thereof, and
the same arguments and evidence can no longer be
entertained on appeal before the CSC, nor in the Court of
Appeals, and much less in a petition for review before the
Supreme Court.[13] In fine, the raising of these factual issues
for the first time in a pleading which is supplemental only to an
appeal is barred by estoppel.[14]
Petitioner asks this Court to appreciate and consider
these factual issues. It must be recalled that the jurisdiction of
the Supreme Court in a petition for review on certiorari under
Rule 45 of the Revised Rules of Court is limited to reviewing
only errors of law, not of fact.[15] That is, of course, unless the
factual findings assailed by petitioner are devoid of support by
the evidence on record or the impugned judgment is based on
a misapprehension of facts.[16]
A thorough perusal of the records reveal that the CSCs
ruling is supported by the evidence and the law. The fourteen
(14) employees were duly appointed following two meetings of
the Personnel Selection Board held on May 31 and June 26,
1995. There is no showing that any of the private respondents
were not qualified for the positions they were appointed
to. Moreover, their appointments were duly attested to by the
Head of the CSC field office at Lucena City. By virtue thereof,
they had already assumed their appointive positions even
before petitioner himself assumed his elected position as town
mayor. Consequently, their appointments took effect
FINALS CONSTITUTION I ACJUCO 150

immediately and cannot be unilaterally revoked or recalled by
petitioner.
It has been held that upon the issuance of an
appointment and the appointees assumption of the position in
the civil service, he acquires a legal right which cannot be
taken away either by revocation of the appointment or by
removal except for cause and with previous notice and
hearing.[17] Moreover, it is well-settled that the person
assuming a position in the civil service under a completed
appointment acquires a legal, not just an equitable, right to the
position. This right is protected not only by statute, but by the
Constitution as well, which right cannot be taken away by either
revocation of the appointment, or by removal, unless there is
valid cause to do so, provided that there is previous notice and
hearing.[18]
ruled, however, that the constitutional prohibition on so-called
midnight appointments, specifically those made within two (2)
months immediately prior to the next presidential elections,
applies only to the President or Acting President.
If ever there were other procedural or legal requirements
that were violated in implementing the appointments of the
private respondents, the same were not seasonably brought
before the Civil Service Commission. These cannot be raised
for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant
petition for review is DENIED and the Resolution of the Court
of Appeals in CA-G.R. SP No. 42896 affirming CSC
Resolutions Nos. 96-2828 and 96-7527 is hereby
AFFIRMED in toto.

Petitioner admits that his very first official act upon No pronouncement as to costs.
assuming the position of town mayor was to issue Office Order
SO ORDERED.
No. 95-01 which recalled the appointments of the private
respondents. There was no previous notice, much less a
hearing accorded to the latter. Clearly, it was petitioner who
acted in undue haste to remove the private respondents
without regard for the simple requirements of due process of
law. In doing so, he overstepped the bounds of his
authority. While he argues that the appointing power has the
sole authority to revoke said appointments, there is no debate
that he does not have blanket authority to do so. Neither can
he question the CSCs jurisdiction to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing
Regulations of the Revised Administrative Code specifically
provides that an appointment accepted by the appointee
cannot be withdrawn or revoked by the appointing authority
and shall remain in force and in effect until disapproved by the
Commission. Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such
appointment and approval are proven to be in disregard of
applicable provisions of the civil service law and regulations. [19]
Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent

laws and rules shall take effect immediately upon its issuance
by the appointing authority, and if the appointee has assumed
the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his appointment
by the Commission. The appointment shall remain effective
until disapproved by the Commission.In no case shall an
appointment take effect earlier than he date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an

appointment, the same may be recalled on any of the following
grounds:

(a) Non-compliance with the procedures/criteria

provided in the agencys Merit Promotion Plan;
(b) Failure to pass through the agencys
Selection/Promotion Board;
(c) Violation of the existing collective agreement
between management and employees relative
to promotion; or
(d) Violation of other existing civil service law, rules
and regulations.
Accordingly, the appointments of the private respondents
may only be recalled on the above-cited grounds. And yet, the
only reason advanced by the petitioner to justify the recall was
that these were midnight appointments. The CSC correctly
FINALS CONSTITUTION I ACJUCO 151
G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., VELMA J. CINCO, and
GIDEON C. DE GUZMAN in his capacity as Officer-In-
Charge, Finance Services Department of the Commission
on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for
the issuance of a writ of preliminary injunction and a temporary
restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner"
for brevity) questions the constitutionality of the appointment
and the right to hold office of the following: (1) Alfredo L.
Benipayo ("Benipayo" for brevity) as Chairman of the
Commission on Elections ("COMELEC" for brevity); and (2)
Resurreccion Z. Borra ("Borra" for brevity) and Florentino A.
Tuason, Jr. ("Tuason" for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the
appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director
IV of the COMELEC’s Education and Information Department
("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed
petitioner as "Acting Director IV" of the EID. On February 15,
2000, then Chairperson Harriet O. Demetriou renewed the
appointment of petitioner as Director IV of EID in a
"Temporary" capacity. On February 15, 2001, Commissioner
Rufino S.B. Javier renewed again the appointment of petitioner
to the same position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC Chairman,3and
Borra4 and Tuason5 as COMELEC Commissioners, each for a
term of seven years and all expiring on February 2, 2008.
Benipayo took his oath of office and assumed the position of
COMELEC Chairman. Borra and Tuason likewise took their
oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad
interim appointments of Benipayo, Borra and Tuason for
confirmation.6 However, the Commission on Appointments did
not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of seven years, expiring
on February 2, 2008.7 They took their oaths of office for a
second time. The Office of the President transmitted on June
5, 2001 their appointments to the Commission on
Appointments for confirmation.8
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the
same positions.9 The Office of the President submitted their
appointments for confirmation to the Commission on
Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 200111 addressed to petitioner as
Director IV of the EID and to Cinco as Director III also of the
EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated April 14,
200112 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to consult
the Commissioner-in-Charge of the EID in the reassignment of
petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider
her relief as Director IV of the EID and her reassignment to the
Law Department.13 Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding
heads of government offices that "transfer and detail of
employees are prohibited during the election period beginning
January 2 until June 13, 2001." Benipayo denied her request
for reconsideration on April 18, 2001, 14 citing COMELEC
Resolution No. 3300 dated November 6, 2000, which states in
part:
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its personnel,
when necessary in the effective performance of its
mandated functions during the prohibited period,
provided that the changes in the assignment of its
field personnel within the thirty-day period before
election day shall be effected after due notice and
hearing."
Petitioner appealed the denial of her request for
reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.15 Petitioner also filed an administrative
and criminal complaint16 with the Law Department17 against
Benipayo, alleging that her reassignment violated Section 261
(h) of the Omnibus Election Code, COMELEC Resolution No.
3258, Civil Service Memorandum Circular No. 07, s. 001, and
other pertinent administrative and civil service laws, rules and
regulations.
During the pendency of her complaint before the Law
Department, petitioner filed the instant petition questioning the
appointment and the right to remain in office of Benipayo, Borra
and Tuason, as Chairman and Commissioners of the
COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, Borra and Tuason violate
the constitutional provisions on the independence of the
COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and
members. Petitioner also assails as illegal her removal as
Director IV of the EID and her reassignment to the Law
Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID.
Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services
Department Officer-in-Charge Gideon C. De Guzman to
Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal
Arroyo renewed once again the ad interimappointments of
Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years
expiring on February 2, 2008.18 They all took their oaths of
office anew.
FINALS CONSTITUTION I ACJUCO 152
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the
requirements before this Court may exercise its power of
judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra
and Tuason on the basis of the ad interimappointments issued
by the President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are legal,
whether or not the renewal of their ad interim appointments
and subsequent assumption of office to the same positions
violate the prohibition on reappointment under Section 1 (2),
Article IX-C of the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her
position as Director IV of the EID and her reassignment to the
Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial
body;
5. Whether or not the Officer-in-Charge of the COMELEC’s
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco,
is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four
requisites before this Court may exercise its power of judicial
review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the
President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual
and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the earliest
opportunity; and (4) the constitutional issue is the lis mota of
the case.19 Respondents argue that the second, third and
fourth requisites are absent in this case. Respondents maintain
that petitioner does not have a personal and substantial
interest in the case because she has not sustained a direct
injury as a result of the ad interim appointments of Benipayo,
Borra and Tuason and their assumption of office. Respondents
point out that petitioner does not claim to be lawfully entitled to
any of the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to question the
constitutionality of the ad interim appointments at the earliest
opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interimappointments of Benipayo,
Borra and Tuason were issued as early as March 22, 2001.
Moreover, the petition was filed after the third time that these
three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality
of petitioner’s reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was
Acting Director, to the Law Department, where she was placed
on detail service.20 Respondents claim that the reassignment
was "pursuant to x x x Benipayo’s authority as Chairman of the
Commission on Elections, and as the Commission’s Chief
Executive Officer."21 Evidently, respondents anchor the legality
of petitioner’s reassignment on Benipayo’s authority as
Chairman of the COMELEC. The real issue then turns on
whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the
EID, her reassignment is without legal basis if Benipayo is not
the lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful COMELEC
Chairman because he assumed office in accordance with the
Constitution, then petitioner’s reassignment is legal and she
has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner has
a personal and material stake in the resolution of the
constitutionality of Benipayo’s assumption of office. Petitioner’s
personal and substantial injury, if Benipayo is not the lawful
COMELEC Chairman, clothes her with the requisite locus
standi to raise the constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning
the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad
interimappointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that
determines whether the constitutional issue was raised at the
earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it is
not raised in the pleadings, it cannot be considered at the trial,
and, if not considered at the trial, it cannot be considered on
appeal."22 Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when
she filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a
competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional
issue may be passed upon.23 There is no doubt petitioner
raised the constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges on
the constitutionality of Benipayo’s ad interimappointment and
assumption of office. Unless the constitutionality of
Benipayo’s ad interim appointment and assumption of office is
resolved, the legality of petitioner’s reassignment from the EID
to the Law Department cannot be determined. Clearly, the lis
mota of this case is the very constitutional issue raised by
petitioner.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May
14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In
keeping with this Court’s duty to determine whether other
agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them,
this Court may even brush aside technicalities of procedure
and resolve any constitutional issue raised. 24 Here the
petitioner has complied with all the requisite technicalities.
Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.
FINALS CONSTITUTION I ACJUCO 153
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides
as follows:
"The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without reappointment.
Of those first appointed, three Members shall hold office for
seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment
to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity." (Emphasis
supplied)
Petitioner posits the view that an ad interim appointment can
be withdrawn or revoked by the President at her pleasure, and
can even be disapproved or simply by-passed by the
Commission on Appointments. For this reason, petitioner
claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of
Section 1 (2), Article IX-C of the Constitution.
Based on petitioner’s theory, there can be no ad
interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service
Commission and the Commission on Audit. The last sentence
of Section 1 (2), Article IX-C of the Constitution is also found in
Article IX-B and Article IX-D providing for the creation of the
Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section
1 (2) of Article IX-C to mean that the ad interim appointee
cannot assume office until his appointment is confirmed by the
Commission on Appointments for only then does his
appointment become permanent and no longer temporary in
character.
The rationale behind petitioner’s theory is that only an
appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the
COMELEC. A confirmed appointee is beyond the influence of
the President or members of the Commission on Appointments
since his appointment can no longer be recalled or
disapproved. Prior to his confirmation, the appointee is at the
mercy of both the appointing and confirming powers since his
appointment can be terminated at any time for any cause. In
the words of petitioner, a Sword of Damocles hangs over the
head of every appointee whose confirmation is pending with
the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment
because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has qualified
into office. The fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad
interim appointment permanent in character by making it
effective until disapproved by the Commission on
Appointments or until the next adjournment of Congress. The
second paragraph of Section 16, Article VII of the Constitution
provides as follows:
"The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such
disapproval or next adjournment, signifying that it can no
longer be withdrawn or revoked by the President. The fear that
the President can withdraw or revoke at any time and for any
reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that
an ad interim appointment is permanent in character.
In Summers vs. Ozaeta,25 decided on October 25, 1948, we
held that:
"x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President
shall have the power to make appointments during
the recess of the Congress, but such appointments
shall be effective only until disapproval by the
Commission on Appointments or until the next
adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is
subject to confirmation by the Commission on
Appointments does not alter its permanent character.
An ad interim appointment is disapproved certainly
for a reason other than that its provisional period has
expired. Said appointment is of course
distinguishable from an ‘acting’ appointment which is
merely temporary, good until another permanent
appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of
an ad interim appointment, and thus an ad interimappointment
takes effect immediately. The appointee can at once assume
office and exercise, as a de jure officer, all the powers
pertaining to the office. In Pacete vs. Secretary of the
Commission on Appointments,26 this Court elaborated on the
nature of an ad interim appointment as follows:
"A distinction is thus made between the exercise of
such presidential prerogative requiring confirmation
by the Commission on Appointments when Congress
is in session and when it is in recess. In the former,
the President nominates, and only upon the consent
of the Commission on Appointments may the person
thus named assume office. It is not so with reference
to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform
his function without loss of time. His title to such office
is complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the
Commission on Appointments or until the next
adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the term
"ad interim" to mean "in the meantime" or "for the time being."
Hence, petitioner argues that an ad interim appointment is
undoubtedly temporary in character. This argument is not new
and was answered by this Court in Pamantasan ng Lungsod
ng Maynila vs. Intermediate Appellate Court,27 where we
explained that:
"x x x From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation.
Private respondent had been extended several ‘ad interim’
appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal
translation of the word ‘ad interim’ which creates such belief.
The term is defined by Black to mean "in the meantime" or "for
FINALS CONSTITUTION I ACJUCO 154
the time being". Thus, an officer ad interim is one appointed to
fill a vacancy, or to discharge the duties of the office during the
absence or temporary incapacity of its regular incumbent
(Black’s Law Dictionary, Revised Fourth Edition, 1978). But
such is not the meaning nor the use intended in the context of
Philippine law. In referring to Dr. Esteban’s appointments, the
term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of Regents,
which is originally vested by the University Charter with the
power of appointment, is unable to act. x x x." (Emphasis
supplied)
Thus, the term "ad interim appointment", as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary
appointment that can be withdrawn or revoked at any time. The
term, although not found in the text of the Constitution, has
acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the
nature of an ad interim appointment in the more recent case
of Marohombsar vs. Court of Appeals,28where the Court
stated:
"We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity,
rather it denotes the manner in which the
appointment was made. In the instant case, the
appointment extended to private respondent by then
MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent
status of private respondent’s appointment as
Executive Assistant II was recognized and attested
to by the Civil Service Commission Regional Office
No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous
with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad
interim appointments are permanent but their terms
are only until the Board disapproves them."
(Emphasis supplied)
An ad interim appointee who has qualified and assumed office
becomes at that moment a government employee and
therefore part of the civil service. He enjoys the constitutional
protection that "[n]o officer or employee in the civil service shall
be removed or suspended except for cause provided by
law."29 Thus, an ad interim appointment becomes complete
and irrevocable once the appointee has qualified into office.
The withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the
moment he qualifies, and any withdrawal or revocation
thereafter is tantamount to removal from office. 30 Once an
appointee has qualified, he acquires a legal right to the office
which is protected not only by statute but also by the
Constitution. He can only be removed for cause, after notice
and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes
specified in the Constitution. The first cause is the disapproval
of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of
Congress without the Commission on Appointments acting on
his appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute,
in effect, a Sword of Damocles over the heads of ad
interim appointees. No one, however, can complain because it
is the Constitution itself that places the Sword of Damocles
over the heads of the ad interimappointees.
While an ad interim appointment is permanent and irrevocable
except as provided by law, an appointment or designation in a
temporary or acting capacity can be withdrawn or revoked at
the pleasure of the appointing power. 31A temporary or acting
appointee does not enjoy any security of tenure, no matter how
briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in
Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon
Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very
terms essentially temporary and therefore revocable
at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of
the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the
President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will
not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the
independence of the Commission on Elections,
foremost among which is the security of tenure of its
members. That guarantee is not available to the
respondent as Acting Chairman of the Commission
on Elections by designation of the President of the
Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided
under the 1935 Constitution, which did not have a provision
prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional
the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an
acting Commissioner would undermine the independence of
the COMELEC and hence violate the Constitution. We
declared then: "It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to appoint
a permanent Commissioner than to designate one to act
temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint permanent
Commissioners to fill the vacancies in the COMELEC, subject
only to confirmation by the Commission on Appointments.
Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity,
unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac34 and Solicitor General Felix Bautista in Nacionalista
Party vs. Bautista.35 The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the Constitution
which authorizes the President, during the recess of Congress,
to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be
independent"36 , this provision should be harmonized with the
President’s power to extend ad interim appointments. To hold
that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad
interim appointees before the appointees can assume office
will negate the President’s power to make ad
interim appointments. This is contrary to the rule on statutory
FINALS CONSTITUTION I ACJUCO 155
construction to give meaning and effect to every provision of
the law. It will also run counter to the clear intent of the framers
of the Constitution.
The original draft of Section 16, Article VII of the Constitution -
on the nomination of officers subject to confirmation by the
Commission on Appointments - did not provide for ad interim
appointments. The original intention of the framers of the
Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory
recess. However, because of the need to avoid disruptions in
essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional
Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is
only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments?
Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem
is addressed, this might present problems in terms of
anticipating interruption of government business,
considering that we are not certain of the length of
involuntary recess or adjournment of the Congress.
We are certain, however, of the involuntary
adjournment of the Congress which is 30 days, but
we cannot leave to conjecture the matter of
involuntary recess.
FR. BERNAS: That is correct, but we are trying to
look for a formula. I wonder if the Commissioner has
a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the
matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner
Aquino and I propose the following amendment as
the last paragraph of Section 16, the wordings of
which are in the 1935 Constitution: THE PRESIDENT
SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF
CONGRESS WHETHER IT BE VOLUNTARY OR
COMPULSORY BUT SUCH APPOINTMENTS
SHALL BE EFFECTIVE ONLY UNTIL
DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT
ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the
proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph
of Section 16? (Silence) The Chair hears none; the
amendment is approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose
of avoiding interruptions in vital government services that
otherwise would result from prolonged vacancies in
government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs.
Inocentes,38 decided under the 1935 Constitution, Justice
Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments
so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided –
interruption in the discharge of essential functions –
may take place. Because the same evil would result
if the appointments ceased to be effective during the
session of Congress and before its adjournment.
Upon the other hand, once Congress has adjourned,
the evil aforementioned may easily be conjured by
the issuance of other ad interim appointments or
reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of Section
16, Article VII of the Constitution barely avoided the interruption
of essential government services in the May 2001 national
elections. Following the decision of this Court in Gaminde vs.
Commission on Appointments,39 promulgated on December
13, 2000, the terms of office of constitutional officers first
appointed under the Constitution would have to be counted
starting February 2, 1987, the date of ratification of the
Constitution, regardless of the date of their actual appointment.
By this reckoning, the terms of office of three Commissioners
of the COMELEC, including the Chairman, would end on
February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002, 41 the original
expiry date of the term of her predecessor, Justice Bernardo
P. Pardo, who was elevated to this Court. The original expiry
date of the term of Commissioner Teresita Dy-Liacco Flores
was also February 15, 2002, while that of Commissioner Julio
F. Desamito was November 3, 2001.42 The original expiry
dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed
to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were
three vacancies in the seven-person COMELEC, with national
elections looming less than three and one-half months away.
To their credit, Chairperson Demetriou and Commissioner
Flores vacated their offices on February 2, 2001 and did not
question any more before this Court the applicability of
the Gaminderuling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this
Court in the Gaminde case, Chairperson Demetriou stated that
she was vacating her office on February 2, 2001, as she
believed any delay in choosing her successor might create a
"constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a
petition for intervention44 in the Gaminde case but this Court
denied the intervention. Thus, Commissioner Desamito also
vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary
recess between February and June considering that many of
the members of the House of Representatives and the Senate
run for re-election. In 2001, the Eleventh Congress adjourned
from January 9, 2001 to June 3, 2001.45 Concededly, there was
no more time for Benipayo, Borra and Tuason, who were
originally extended ad interim appointments only on March 22,
2001, to be confirmed by the Commission on Appointments
before the May 14, 2001 elections.
FINALS CONSTITUTION I ACJUCO 156
If Benipayo, Borra and Tuason were not extended ad
interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the May
2001 elections. Considering that the Constitution requires that
"all x x x election cases shall be heard and decided in
division",46 the remaining one division would have been
swamped with election cases. Moreover, since under the
Constitution motions for reconsideration "shall be decided by
the Commission en banc", the mere absence of one of the four
remaining members would have prevented a quorum, a less
than ideal situation considering that the Commissioners are
expected to travel around the country before, during and after
the elections. There was a great probability that disruptions in
the conduct of the May 2001 elections could occur because of
the three vacancies in the COMELEC. The successful conduct
of the May 2001 national elections, right after the tumultuous
EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of
her constitutional power to make ad interimappointments
prevented the occurrence of the very evil sought to be avoided
by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is
lodged in the President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16, Article
VII of the Constitution, the President can choose either of two
modes in appointing officials who are subject to confirmation
by the Commission on Appointments. First, while Congress is
in session, the President may nominate the prospective
appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume office.
Second, during the recess of Congress, the President may
extend an ad interim appointment which allows the appointee
to immediately qualify and assume office.
Whether the President chooses to nominate the prospective
appointee or extend an ad interim appointment is a matter
within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire
into the propriety of the choice made by the President in the
exercise of her constitutional power, absent grave abuse of
discretion amounting to lack or excess of jurisdiction on her
part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the
COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.47 Former President Fidel V.
Ramos extended ad interim appointments to Commissioners
Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.48 Former President Joseph
Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion. 49
The President’s power to extend ad interim appointments may
indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is
only for a short period - from the time of issuance of the ad
interim appointment until the Commission on Appointments
gives or withholds its consent. The Constitution itself sanctions
this situation, as a trade-off against the evil of disruptions in
vital government services. This is also part of the check-and-
balance under the separation of powers, as a trade-off against
the evil of granting the President absolute and sole power to
appoint. The Constitution has wisely subjected the President’s
appointing power to the checking power of the legislature.
This situation, however, does not compromise the
independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure
that the majority of its members hold confirmed appointments,
and not one President will appoint all the COMELEC
members.50 In the instant case, the Commission on
Appointments had long confirmed four 51 of the incumbent
COMELEC members, comprising a majority, who could now
be removed from office only by impeachment. The special
constitutional safeguards that insure the independence of the
COMELEC remain in place.52 The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice.
Moreover, the salaries of COMELEC members cannot be
decreased during their tenure.
In fine, we rule that the ad interim appointments extended by
the President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim
appointments and the first assumption of office by Benipayo,
Borra and Tuason are constitutional, the renewal of the their
ad interim appointments and their subsequent assumption of
office to the same positions violate the prohibition on
reappointment under Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
"The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first
appointed, three Members shall hold office for seven
years, two Members for five years, and the last
members for three years, without reappointment. X x
x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-
passed by the Commission on Appointments, his ad interim
appointment can no longer be renewed because this will
violate Section 1 (2), Article IX-C of the Constitution which
prohibits reappointments. Petitioner asserts that this is
particularly true to permanent appointees who have assumed
office, which is the situation of Benipayo, Borra and Tuason if
their ad interim appointments are deemed permanent in
character.
There is no dispute that an ad interim appointee disapproved
by the Commission on Appointments can no longer be
extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise
of its checking power on the appointing authority of the
President. The disapproval is a decision on the merits, being a
refusal by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee. Since
the Constitution does not provide for any appeal from such
decision, the disapproval is final and binding on the appointee
as well as on the appointing power. In this instance, the
President can no longer renew the appointment not because
of the constitutional prohibition on reappointment, but because
of a final decision by the Commission on Appointments to
withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack
of time or failure of the Commission on Appointments to
organize is another matter. A by-passed appointment is one
that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of
Congress. There is no final decision by the Commission on
FINALS CONSTITUTION I ACJUCO 157
Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such
decision, the President is free to renew the ad interim
appointment of a by-passed appointee. This is recognized in
Section 17 of the Rules of the Commission on Appointments,
which provides as follows:
"Section 17. Unacted Nominations or Appointments
Returned to the President. Nominations or
appointments submitted by the President of the
Philippines which are not finally acted upon at the
close of the session of Congress shall be returned to
the President and, unless new nominations or
appointments are made, shall not again be
considered by the Commission." (Emphasis
supplied)
Hence, under the Rules of the Commission on Appointments,
a by-passed appointment can be considered again if the
President renews the appointment.
It is well settled in this jurisdiction that the President can renew
the ad interim appointments of by-passed appointees. Justice
Roberto Concepcion, Jr. lucidly explained in his concurring
opinion in Guevara vs. Inocentes53why by-passed ad
interim appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be
effective upon disapproval by the Commission,
because the incumbent can not continue holding
office over the positive objection of the Commission.
It ceases, also, upon "the next adjournment of the
Congress", simply because the President may then
issue new appointments - not because of implied
disapproval of the Commission deduced from its
inaction during the session of Congress, for, under
the Constitution, the Commission may affect
adversely the interim appointments only by action,
never by omission. If the adjournment of Congress
were an implied disapproval of ad
interimappointments made prior thereto, then the
President could no longer appoint those so by-
passed by the Commission. But, the fact is that the
President may reappoint them, thus clearly indicating
that the reason for said termination of the ad
interim appointments is not the disapproval thereof
allegedly inferred from said omission of the
Commission, but the circumstance that upon said
adjournment of the Congress, the President is free to
make ad interim appointments or reappointments."
(Emphasis supplied)
Guevara was decided under the 1935 Constitution from where
the second paragraph of Section 16, Article VII of the present
Constitution on ad interim appointments was
lifted verbatim.54 The jurisprudence under the 1935
Constitution governing ad interim appointments by the
President is doubtless applicable to the present Constitution.
The established practice under the present Constitution is that
the President can renew the appointments of by-passed ad
interim appointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing
power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C
of the Constitution applies neither to disapproved nor by-
passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad
interimappointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of
the Constitution. A by-passed ad interim appointment can be
revived by a new ad interim appointment because there is no
final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the
appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that
"[t]he Chairman and the Commissioners shall be appointed x x
x for a term of seven years without reappointment." (Emphasis
supplied) There are four situations where this provision will
apply. The first situation is where an ad interim appointee to
the COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such person
cannot be reappointed to the COMELEC, whether as a
member or as a chairman, because he will then be actually
serving more than seven years. The second situation is where
the appointee, after confirmation, serves a part of his term and
then resigns before his seven-year term of office ends. Such
person cannot be reappointed, whether as a member or as a
chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more
than seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired term.
Such person cannot be reappointed, whether as a member or
chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more
than seven years.
The fourth situation is where the appointee has previously
served a term of less than seven years, and a vacancy arises
from death or resignation. Even if it will not result in his serving
more than seven years, a reappointment of such person to
serve an unexpired term is also prohibited because his
situation will be similar to those appointed under the second
sentence of Section 1 (2), Article IX-C of the Constitution. This
provision refers to the first appointees under the Constitution
whose terms of office are less than seven years, but are barred
from ever being reappointed under any situation. Not one of
these four situations applies to the case of Benipayo, Borra or
Tuason.
The framers of the Constitution made it quite clear that any
person who has served any term of office as COMELEC
member – whether for a full term of seven years, a truncated
term of five or three years, or even for an unexpired term of
any length of time – can no longer be reappointed to the
COMELEC. Commissioner Foz succinctly explained this intent
in this manner:
"MR. FOZ. But there is the argument made in the
concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where
the appointee serves only for less than seven years,
he would be entitled to reappointment. Unless we put
the qualifying words "without reappointment" in the
case of those appointed, then it is possible that an
interpretation could be made later on their case, they
can still be reappointed to serve for a total of seven
years.
Precisely, we are foreclosing that possibility by
making it clear that even in the case of those first
appointed under the Constitution, no reappointment
can be made."55 (Emphasis supplied)
FINALS CONSTITUTION I ACJUCO 158
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in
his concurring opinion, quoted Nacionalista vs. De
Vera57that a "[r]eappointment is not prohibited when
a Commissioner has held office only for, say, three
or six years, provided his term will not exceed nine
years in all." This was the interpretation despite the
express provision in the 1935 Constitution that a
COMELEC member "shall hold office for a term of
nine years and may not be reappointed."
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article IX-C of
the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term
of seven years. The second phrase prohibits reappointment of
any person previously appointed for a term of five or three
years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person
previously appointed completes his term of office for the
intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by
inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a
fixed term nor an unexpired term. To hold otherwise would
mean that the President by his unilateral action could start and
complete the running of a term of office in the COMELEC
without the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of the
Commission on Appointments.
The phrase "without reappointment" applies only to one who
has been appointed by the President and confirmed by the
Commission on Appointments, whether or not such person
completes his term of office. There must be a confirmation by
the Commission on Appointments of the previous appointment
before the prohibition on reappointment can apply. To hold
otherwise will lead to absurdities and negate the President’s
power to make ad interim appointments.
In the great majority of cases, the Commission on
Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President
will certainly hesitate to make ad interim appointments
because most of her appointees will effectively be disapproved
by mere inaction of the Commission on Appointments. This will
nullify the constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe to a
proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three
constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have
been previously appointed and confirmed even if they served
for less than seven years. The second is to insure that the
members of the three constitutional commissions do not serve
beyond the fixed term of seven years. As reported in
the Journal of the Constitutional Commission, Commissioner
Vicente B. Foz, who sponsored58 the proposed articles on the
three constitutional commissions, outlined the four important
features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced
basic changes in the common provision affecting the
three Constitutional Commissions, and which are: 1)
fiscal autonomy which provides (that) appropriations
shall be automatically and regularly released to the
Commission in the same manner (as) provided for
the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure
continuity of functions and to minimize the
opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to
decrease salaries of the members of the
Commissions during their term of office; and 4)
appointments of members would not require
confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by
the Constitutional Commission to these four features. First, as
discussed earlier, the framers of the Constitution decided to
require confirmation by the Commission on Appointments of all
appointments to the constitutional commissions. Second, the
framers decided to strengthen further the prohibition on
serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for
12 years despite his fixed term of seven years. The following
exchange in the deliberations of the Constitutional
Commission is instructive:
"MR. SUAREZ: These are only clarificatory
questions, Madam President. May I call the
sponsor’s attention, first of all, to Section 2 (2) on the
Civil Service Commission wherein it is stated: "In no
case shall any Member be appointed in a temporary
or acting capacity." I detect in the Committee’s
proposed resolutions a constitutional hangover, if I
may use the term, from the past administration. Am I
correct in concluding that the reason the Committee
introduced this particular provision is to avoid an
incident similar to the case of the Honorable
Francisco Tantuico who was appointed in an acting
capacity as Chairman of the Commission on Audit for
about 5 years from 1975 until 1980, and then in 1980,
was appointed as Chairman with a tenure of another
7 years. So, if we follow that appointment to (its)
logical conclusion, he occupied that position for
about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the
considerations. Another is really to make sure that
any member who is appointed to any of the
commissions does not serve beyond 7
years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the
prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the
whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole
there is no way that somebody can serve for more
than seven years. The purpose of the last sentence
is to make sure that this does not happen by including
in the appointment both temporary and acting
capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure
that there will be no reappointment of any kind. On the other
hand, the prohibition on temporary or acting appointments is
intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointee’s total term of
office exceeding seven years. The evils sought to be avoided
by the twin prohibitions are very specific - reappointment of any
kind and exceeding one’s term in office beyond the maximum
period of seven years.
FINALS CONSTITUTION I ACJUCO 159
Not contented with these ironclad twin prohibitions, the framers
of the Constitution tightened even further the screws on those
who might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be
exploited by violators of the Constitution, as shown in the
following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the
words "appointed" and "in", I propose to insert the
words OR DESIGNATED so that the whole sentence
will read: "In no case shall any Member be appointed
OR DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does
the Committee say?
MR. FOZ: But it changes the meaning of this
sentence. The sentence reads: "In no case shall any
Member be appointed in a temporary or acting
capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the
reason for this amendment is that some lawyers
make a distinction between an appointment and a
designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister
of Justice opined that it did not because he was only
designated during the time that he acted as
Commissioner on Audit. So, in order to erase that
distinction between appointment and designation, we
should specifically place the word so that there will
be no more ambiguity. "In no case shall any Member
be appointed OR DESIGNATED in a temporary or
acting capacity."
MR. FOZ: The amendment is accepted, Mr.
Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there
any objection? (Silence) The Chair hears none; the
amendment is approved."62
The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate
the prohibition on reappointments because there were no
previous appointments that were confirmed by the
Commission on Appointments. A reappointment presupposes
a previous confirmed appointment. The same ad
interim appointments and renewals of appointments will also
not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo,
Borra and Tuason are for a fixed term expiring on February 2,
2008.63 Any delay in their confirmation will not extend the
expiry date of their terms of office. Consequently, there is no
danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in
any of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing renewal of
the ad interim appointment of these three respondents, for so
long as their terms of office expire on February 2, 2008, does
not violate the prohibition on reappointments in Section 1 (2),
Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her
as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC,
acting as a collegial body, can authorize such reassignment.
Moreover, petitioner maintains that a reassignment without her
consent amounts to removal from office without due process
and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, that Benipayo is the de
jure COMELEC Chairman, and consequently he has full
authority to exercise all the powers of that office for so long as
his ad interim appointment remains effective. Under Section 7
(4), Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is vested with the
following power:
"Section 7. Chairman as Executive Officer; Powers
and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer
personnel in accordance with the provisions of the
Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is
expressly empowered on his own authority to transfer or
reassign COMELEC personnel in accordance with the Civil
Service Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC en
banc.
Petitioner’s appointment papers dated February 2, 1999,
February 15, 2000 and February 15, 2001, attached as
Annexes "X", "Y" and "Z" to her Petition, indisputably show that
she held her Director IV position in the EID only in an acting or
temporary capacity.64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career
Executive Service Eligibility, which are necessary
qualifications for holding the position of Director IV as
prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission.65 Obviously, petitioner
does not enjoy security of tenure as Director IV. In Secretary
of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this
Court held that:
"As respondent does not have the rank appropriate
for the position of Chief Public Attorney, her
appointment to that position cannot be considered
permanent, and she can claim no security of tenure
in respect of that position. As held in Achacoso v.
Macaraig:
‘It is settled that a permanent appointment
can be issued only ‘to a person who meets
all the requirements for the position to
which he is being appointed, including the
appropriate eligibility prescribed.’
Achacoso did not. At best, therefore, his
appointment could be regarded only as
temporary. And being so, it could be
withdrawn at will by the appointing authority
and ‘at a moment’s notice’, conformably to
established jurisprudence x x x.
The mere fact that a position belongs to the
Career Service does not automatically
FINALS CONSTITUTION I ACJUCO 160
confer security of tenure on its occupant
even if he does not possess the required
qualifications. Such right will have to
depend on the nature of his appointment,
which in turn depends on his eligibility or
lack of it. A person who does not have the
requisite qualifications for the position
cannot be appointed to it in the first place,
or as an exception to the rule, may be
appointed to it merely in an acting capacity
in the absence of appropriate eligibles. The
appointment extended to him cannot be
regarded as permanent even if it may be so
designated x x x.’"
Having been appointed merely in a temporary or acting
capacity, and not possessed of the necessary qualifications to
hold the position of Director IV, petitioner has no legal basis in
claiming that her reassignment was contrary to the Civil
Service Law. This time, the vigorous argument of petitioner that
a temporary or acting appointment can be withdrawn or
revoked at the pleasure of the appointing power happens to
apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the
election period, as a prohibited act under Section 261 (h) of the
Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be
guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil
service - Any public official who makes or causes any
transfer or detail whatever of any officer or employee
in the civil service including public school teachers,
within the election period except upon prior approval
of the Commission."
Petitioner claims that Benipayo failed to secure the approval of
the COMELEC en banc to effect transfers or reassignments of
COMELEC personnel during the election period. 67 Moreover,
petitioner insists that the COMELEC en banc must concur to
every transfer or reassignment of COMELEC personnel during
the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact
issue COMELEC Resolution No. 3300 dated November 6,
2000,68 exempting the COMELEC from Section 261 (h) of the
Omnibus Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g)
and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following
shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in
the civil service – Any public official who
makes or causes any transfer or detail
whatever of any officer or employee in the
civil service including public school
teachers, within the election period except
upon approval of the Commission.
WHEREAS, the aforequoted provisions are
applicable to the national and local elections on May
14, 2001;
WHEREAS, there is an urgent need to appoint,
transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it
can carry out its constitutional duty to conduct free,
orderly, honest, peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its personnel,
when necessary in the effective performance of its
mandated functions during the prohibited period,
provided that the changes in the assignment of
its field personnel within the thirty-day period before
election day shall be effected after due notice and
hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due
notice and hearing before any transfer or reassignment can be
made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel
like the petitioner. Under the Revised Administrative
Code,69 the COMELEC Chairman is the sole officer specifically
vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the
authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power
because that will mean amending the Revised Administrative
Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should carry
the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence
will render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless.
Resolution No. 3300 should be interpreted for what it is, an
approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the
COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized
by law to transfer or reassign COMELEC personnel. The
person holding that office, in a de jure capacity, is Benipayo.
The COMELEC en banc, in COMELEC Resolution No. 3300,
approved the transfer or reassignment of COMELEC
personnel during the election period. Thus, Benipayo’s order
reassigning petitioner from the EID to the Law Department
does not violate Section 261 (h) of the Omnibus Election Code.
For the same reason, Benipayo’s order designating Cinco
Officer-in-Charge of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De
Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in
FINALS CONSTITUTION I ACJUCO 161

excess of jurisdiction in paying the salaries and other

emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs

against petitioner.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 162

G.R. No. 112745 October 16, 1997 This is a report in the case of Assistant
Commissioner AQUILINO T. LARIN of the
AQUILINO T. LARIN, petitioner, Excise Tax Service, Bureau of Internal
Revenue, a presidential appointee, one of
vs.
THE EXECUTIVE SECRETARY, SECRETARY OF those convicted in Criminal Case Nos.
FINANCE, COMMISSIONER OF THE BUREAU OF 14208-14209, entitled "People of the
INTERNAL REVENUE AND THE COMMITTEE CREATED Philippines vs. Aquilino T. Larin, et. al."
TO INVESTIGATE THE ADMINISTRATIVE COMPLAINT referred to the Department of Finance by
AGAINST AQUILINO T. LARIN, COMPOSED OF the Commissioner of Internal Revenue.
FRUMENCIO A. LAGUSTAN, JOSE B. ALEJANDRINO AND
JAIME M. MAZA, respondents. The cases against Pareno and Evangelista
are being acted upon by the Bureau of
TORRES, JR., J.: Internal Revenue as they are non-
presidential appointees.

Challenged in this petition is the validity of petitioner's removal

from service as Assistant Commissioner of the Excise Tax xxx xxx xxx
Service of the Bureau of Internal Revenue. Incidentally, he
questions Memorandum Order No. 164 issued by the Office of It is clear from the foregoing that Mr. Larin
the President, which provides for the creation of "A Committee has been found beyond reasonable doubt
to Investigate the Administrative Complaint Against Aquilino T. to have committed acts constituting grave
Larin, Assistant Commissioner, Bureau of Internal Revenue" misconduct. Under the Civil Service Laws
as well as the investigation made in pursuance thereto, and and Rules which require only
Administrative Order No. 101 dated December 2, 1993 which preponderance of evidence, grave
found him guilty of grave misconduct in the administrative misconduct is punishable by dismissal.
charge and imposed upon him the penalty of dismissal from
office. Acting by authority of the President, Sr. Deputy Executive
Secretary Leonardo A. Quisumbing issued Memorandum
Likewise, petitioner seeks to assail the legality of Executive Order No. 164 dated August 25, 1993 which provides for the
Order No. 132, issued by President Ramos on October 26, creation of an Executive Committee to investigate the
1993, which provides for the "Streamlining of the Bureau of administrative charge against herein petitioner Aquilino T.
Internal Revenue," and of its implementing rules issued by the Larin. It states thus:
Bureau of Internal Revenue, namely: a) Administrative Order
No. 4-93, which provides for the "Organizational Structure and
A Committee is hereby created to
Statement of General Functions of Offices in the National investigate the administrative complaint
Office" and b) Administrative Order No. 5-93, which provides filed against Aquilino T. Larin, Assistant
for "Redefining the Areas of Jurisdiction and Renumbering of Commissioner, Bureau of Internal
Regional And District Offices." Revenue, to be composed of:

The antecedent facts of the instant case as succinctly related Atty. Frumencio A.
by the Solicitor General are as follows: Lagustan — Chairman
Assistant Executive
On September 18, 1992,1 a decision was rendered by the Secretary for
Sandiganbayan convicting herein petitioner Aquilino T. Larin, Legislation
Revenue Specific Tax Officer, then Assistant Commissioner of
the Bureau of Internal Revenue and his co-accused (except Mr. Jose B. Alejandro
Justino E. Galban, Jr.) of the crimes of violation of Section 268 — Member
(4) of the National Internal Revenue Code and Section 3 (e) of Presidential Assistant
R.A. 3019 in Criminal Cases Nos. 14208-14209, entitled
"People of the Philippines, Plaintiff vs. Aquilino T. Larin,
Teodoro T. Pareno, Justino E. Galban, Jr. and Potenciana N. Atty. Jaime M. Maza —
Evangelista, Accused," the dispositive portion of the judgment Member
reads: Assistant
Commissioner for
Inspector Services
WHEREFORE, judgment is now rendered
Bureau of Internal
in Criminal Cases Nos. 14208 and 14209 Revenue
convicting accused Assistant
Commissioner for Specific Tax AQUILINO
T. LARIN, Chief of the Alcohol Tax Division The Committee shall have all the powers
TEODORO P. PARENO, and Chief of the and prerogatives of (an) investigating
Revenue Accounting Division committee under the Administrative Code
POTENCIANA M. EVANGELISTA: of 1987 including the power to summon
witnesses, administer oath or take
testimony or evidence relevant to the
xxx xxx xxx investigation by subpoena ad testificandum
and subpoena duces tecum.
SO ORDERED.
xxx xxx xxx
The fact of petitioner's conviction was reported to the President
of the Philippines by the then Acting Finance Secretary Leong
The Committee shall convene immediately,
through a memorandum dated June 4, 1993. The conduct the investigation in the most
memorandum states, inter alia:
FINALS CONSTITUTION I ACJUCO 163
expeditious manner, and terminate the
same as soon as practicable from its first
scheduled date of hearing.
xxx xxx xxx
Consequently, the Committee directed the petitioner to
respond to the administrative charge leveled against him
through a letter dated September 17, 1993, thus:
Presidential Memorandum Order No. 164
dated August 25, 1993, a xerox copy of
which is hereto attached for your ready
reference, created an Investigation
Committee to look into the charges against
you which are also the subject of the
Criminal Cases No. 14208 and 14209
entitled People of the Philippines
vs. Aquilino T . Larin, et. al.
The Committee has in its possession a
certified true copy of the Decision of the
Sandiganbayan in the above-mentioned
cases.
Pursuant to Presidential Memorandum
Order No. 164, you are hereby directed to
file your position paper on the
aforementioned charges within seven (7)
days from receipt hereof . . . .
Failure to file the required position paper
shall be considered as a waiver on your
part to submit such paper or to be heard, in
which case, the Committee shall deem the
case submitted on the basis of the
documents and records at hand.
In compliance, petitioner submitted a letter dated September
30, 1993 which was addressed to Atty. Frumencio A. Lagustan,
the Chairman of the Investigating Committee. In said latter, he
asserts that,
The case being sub-judice, I may not,
therefore, comment on the merits of the
issues involved for fear of being cited in
contempt of Court. This position paper is
thus limited to furnishing the Committee
pertinent documents submitted with the
Supreme Court and other tribunal which
took cognizance of the case in the past, as
follows:
xxx xxx xxx
The foregoing documents readily show that
am not administratively liable or criminally
culpable of the charges leveled against me,
and that the aforesaid cases are mere
persecutions caused to be filed and are
being orchestrated by taxpayers who were
prejudiced by multi-million peso
assessments I caused to be issued against
them in my official capacity as Assistant
Commissioner, Excise Tax Office of the
Bureau of Internal Revenue.
In the same letter, petitioner claims that the administrative
complaint against him is already barred: a) on jurisdictional
ground as the Office of the Ombudsman had already taken
cognizance of the case and had caused the filing only of the
criminal charges against him, b) by res judicata, c) by double
jeopardy, and d) because to proceed with the case would be
redundant, oppressive and a plain persecution against him.
Meanwhile, the President issued the challenged Executive
Order No. 132 dated October 26, 1993 which mandates for the
streamlining of the Bureau of Internal Revenue. Under said
order, some positions and functions are either abolished,
renamed, decentralized or transferred to other offices, while
other offices are also created. The Excise Tax Service or the
Specific Tax Service, of which petitioner was the Assistant
Commissioner, was one of those offices that was abolished by
said executive order.
The corresponding implementing rules of Executive Order No.
132, namely, Revenue Administrative Orders Nos. 4-93 and 5-
93, were subsequently issued by the Bureau of Internal
Revenue.
On October 27, 1993, or one day after the promulgation of
Executive Order No. 132, the President appointed the following
as BIR Assistant Commissioners:
1. Bernardo A. Frianeza
2. Dominador L. Galura
3. Jaime D. Gonzales
4. Lilia C. Guillermo
5. Rizalina S. Magalona
6. Victorino C.
Mamalateo
7. Jaime M. Maza
8. Antonio N.
Pangilinan
9. Melchor S. Ramos
10. Joel L. Tan-Torres
Consequently, the President, in the assailed Administrative
Order No. 101 dated December 2, 1993, found petitioner guilty
of grave misconduct in the administrative charge and imposed
upon him the penalty of dismissal with forfeiture of his leave
credits and retirement benefits including disqualification for
reappointment in the government service.
Aggrieved, petitioner filed directly with this Court the instant
petition on December 13, 1993 to question basically his alleged
unlawful removal from office.
On April 17, 1996 and while the instant petition is pending, this
Court set aside the conviction of petitioner in Criminal Case
Nos. 14208 and 14209.
In his petition, petitioner challenged the authority of the
President to dismiss him from office. He argued that in so far
as presidential appointees who are Career Executive Service
Officers are concerned, the President exercises only the power
of control not the power to remove. He also averred that the
FINALS CONSTITUTION I ACJUCO 164
administrative investigation conducted under Memorandum
Order No. 164 is void as it violated his right to due process.
According to him, the letter of the Committee dated September
17, 1993 and his position paper dated September 30, 1993 are
not sufficient for purposes of complying with the requirements
of due process. He alleged that he was not informed of the
administrative charges leveled against him nor was he given
official notice of his dismissal.
Petitioner likewise claimed that he was removed as a result of
the reorganization made by the Executive Department in the
BIR pursuant to Executive Order No. 132. Thus, he assailed
said Executive Order No. 132 and its implementing rules,
namely, Revenue Administrative Orders 4-93 and 5-93 for
being ultra vires. He claimed that there is yet no law enacted
by Congress which authorizes the reorganization by the
Executive Department of executive agencies, particularly the
Bureau of Internal Revenue. He said that the reorganization
sought to be effected by the Executive Department on the
basis of E.O. No. 132 is tainted with bad faith in apparent
violation of Section 2 of R.A. 6656, otherwise known as the Act
Protecting the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government
Reorganization.
On the other hand. respondents contended that since
petitioner is a presidential appointee, he falls under the
disciplining authority of the President. They also contended
that E.O. No. 132 and its implementing rules were validly
issued pursuant to Sections 48 and 62 of Republic Act No.
7645. Apart from this, the other legal bases of E.O. No. 132 as
stated in its preamble are Section 63 of E.O. No. 127
(Reorganizing the Ministry of Finance), and Section 20, Book
III of E.O. No. 292, otherwise known as the Administrative
Code of 1987. In addition, it is clear that in Section 11 of R.A.
No. 6656 future reorganization is expressly contemplated and
nothing in said law that prohibits subsequent reorganization
through an executive order. Significantly, respondents clarified
that petitioner was not dismissed by virtue of EO 132.
Respondents claimed that he was removed from office
because he was found guilty of grave misconduct in the
administrative cases filed against him.
The ultimate issue to be resolved in the instant case falls on
the determination of the validity of petitioner's dismissal from
office. Incidentally, in order to resolve this matter, it is
imperative that We consider these questions: a) Who has the
power to discipline the petitioner?, b) Were the proceedings
taken pursuant to Memorandum Order No. 164 in accord with
due process?, c) What is the effect of petitioner's acquittal in
the criminal case to his administrative charge?, d) Does the
President have the power to reorganize the BIR or to issue the
questioned E.O. NO. 132?, and e) Is the reorganization of BIR
pursuant to E.O. No. 132 tainted with bad faith?
At the outset, it is worthy to note that the position of Assistant
Commissioner of the BIR is part of the Career Executive
Service.2 Under the law,3 Career Executive Service officers,
namely, Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other
officers of equivalent rank as may be identified by the Career
Executive Service Board, are all appointed by the President.
Concededly, petitioner was appointed as Assistant
Commissioner in January, 1987 by then President Aquino.
Thus, petitioner is a presidential appointee who belongs to
career service of the Civil Service. Being a presidential
appointee, he comes under the direct disciplining authority of
the President. This is in line with the well settled principle that
the "power to remove is inherent in the power to appoint"
conferred to the President by Section 16, Article VII of the
Constitution. Thus, it is ineluctably clear that Memorandum
Order No. 164, which created a committee to investigate the
administrative charge against petitioner, was issued pursuant
to the power of removal of the President. This power of
removal, however, is not an absolute one which accepts no
reservation. It must be pointed out that petitioner is a career
service officer. Under the Administrative Code of 1987, career
service is characterized by the existence of security of tenure,
as contra-distinguished from non-career service whose tenure
is co-terminus with that of the appointing authority or subject to
his pleasure, or limited to a period specified by law or to the
duration of a particular project for which purpose the
employment was made. As a career service officer, petitioner
enjoys the right to security of tenure. No less than the 1987
Constitution guarantees the right of security of tenure of the
employees of the civil service. Specifically, Section 36 of P.D.
No. 807, as amended, otherwise known as Civil Service
Decree of the Philippines, is emphatic that career service
officers and employees who enjoy security of tenure may be
removed only for any of the causes enumerated in said law. In
other words, the fact that petitioner is a presidential appointee
does not give the appointing authority the license to remove
him at will or at his pleasure for it is an admitted fact that he is
likewise a career service officer who under the law is the
recipient of tenurial protection, thus, may only be removed for
a cause and in accordance with procedural due process.
Was petitioner then removed from office for a legal cause
under a valid proceeding?
Although the proceedings taken complied with the
requirements of procedural due process, this Court, however,
considers that petitioner was not dismissed for a valid cause.
It should be noted that what precipitated the creation of the
investigative committee to look into the administrative charge
against petitioner is his conviction by the Sandiganbayan in
Criminal Case Nos. 14208 and 14209. As admitted by the
respondents, the administrative case against petitioner is
based on the Sandiganbayan Decision of September 18, 1992.
Thus, in the Administrative Order No. 101 issued by Senior
Deputy Executive Secretary Quisumbing which found
petitioner guilty of grave misconduct, it clearly states that:
This pertains to the administrative charge
against Assistant Commissioner Aquilino
T. Larin of the Bureau of Internal Revenue,
for grave misconduct by virtue of a
Memorandum signed by Acting Secretary
Leong of the Department of Finance, on
the basis of a decision handed down by the
Hon. Sandiganbayan convicting Larin, et.
al. in Criminal Case Nos. 14208 and
14209.4
In a nutshell, the criminal cases against petitioner refer to his
alleged violation of Section 268 (4) of the National Internal
Revenue Code and of Section 3 (e) of R.A. No. 3019 as a
consequence of his act of favorably recommending the grant
of tax credit to Tanduay Distillery, Inc.. The pertinent portion of
the judgment of the Sandiganbayan reads:
As above pointed out, the accused had
conspired in knowingly preparing false
memoranda and certification in order to
effect a fraud upon taxes due to the
government. By their separate acts which
had resulted in an appropriate tax credit of
P180,701,682.00 in favor of Tanduay. The
government had been defrauded of a tax
revenue — for the full amount, if one is to
look at the availments or utilization thereof
FINALS CONSTITUTION I ACJUCO 165
(Exhibits "AA" to "AA- 31-a"), or for a
substantial portion thereof
(P73,000,000.00) if we are to rely on the
letter of Deputy Commissioner Eufracio D.
Santos (Exhibits "21" for all the accused).
As pointed out above, the confluence of
acts and omissions committed by accused
Larin, Pareno and Evangelista adequately
prove conspiracy among them for no other
purpose than to bring about a tax credit
which Tanduay did not deserve. These
misrepresentations as to how much
Tanduay had paid in ad valorem taxes
obviously constituted a fraud of tax revenue
of the government . . . .5
However, it must be stressed at this juncture that the conviction
of petitioner by the Sandiganbayan was set aside by this Court
in our decision promulgated on April 17, 1996 in G.R. Nos.
108037-38 and 107119-20. We specifically ruled in no
uncertain terms that: a) petitioner can not be held negligent in
relying on the certification of a co-equal unit in the BIR, b) it is
not incumbent upon Larin to go beyond the certification made
by the Revenue Accounting Division that Tanduay Distillery,
Inc. had paid the ad valorem taxes, c) there is nothing irregular
or anything false in Larin's marginal note on the memorandum
addressed to Pareno, the Chief of Alcohol Tax Division who
was also one of the accused, but eventually acquitted, in the
said criminal cases, and d) there is no proof of actual
agreement between the accused, including petitioner, to
commit the illegal acts charged. We are emphatic in our
resolution in said cases that there is nothing "illegal with the
acts committed by the petitioner(s)." We also declare that
"there is no showing that petitioner(s) had acted irregularly, or
performed acts outside of his (their) official functions."
Significantly, these acts which. We categorically declare to be
not unlawful and improper in G.R. Nos. 108037-38 and G.R.
Nos. 107119-20 are the very same acts for which petitioner is
held to be administratively responsible. Any charge of
malfeasance or misfeasance on the part of the petitioner is
clearly belied by our conclusion in said cases. In the light of
this decisive pronouncement, We see no reason for the
administrative charge to continue — it must, thus, be
dismissed.
We are not unaware of the rule that since administrative cases
are independent from criminal actions for the same act or
omission, the dismissal or acquittal of the criminal charge does
not foreclose the institution of administrative action nor carry
with it the relief from administrative liability. 6 However, the
circumstantial setting of the instant case sets it miles apart from
the foregoing rule and placed it well within the exception.
Corollarily, where the very basis of the administrative case
against petitioner is his conviction in the criminal action which
was later on set aside by this Court upon a categorical and
clear finding that the acts for which he was administratively
held liable are not unlawful and irregular, the acquittal of the
petitioner in the criminal case necessarily entails the dismissal
of the administrative action against him, because in such a
case, there is no more basis nor justifiable reason to maintain
the administrative suit.
On the aspect of procedural due process, suffice it to say that
petitioner was given every chance to present his side. The rule
is well settled that the essence of due process in administrative
proceedings is that a party be afforded a reasonable
opportunity to be heard and to submit any evidence he may
have in support of his defense.7 The records clearly show that
on October 1, 1993 petitioner submitted his letter-response
dated September 30, 1993 to the administrative charge filed
against him. Aside from his letter, he also submitted various
documents attached as annexes to his letter, all of which are
evidences supporting his defense. Prior to this, he received a
letter dated September 17, 1993 from the Investigation
Committee requiring him to explain his side concerning the
charge. It can not therefore be argued that petitioner was
denied of due process.
Let us now examine Executive Order No. 132.
As stated earlier, with the issuance of Executive Order No. 132,
some of the positions and offices, including the office of Excise
Tax Services of which petitioner was the Assistant
Commissioner, were abolished or otherwise decentralized.
Consequently, the President released the list of appointed
Assistant Commissioners of the BIR. Apparently, petitioner
was not included.
We do not agree.
Under its preamble, E.O. No. 132 lays down the legal bases of
its issuance, namely: a) Section 48 and 62 of R.A. No. 7645,
b) Section 63 of E.O. No. 127, and c) Section 20, Book III of
E.O. No. 292.
Section 48 of R.A. 7645 provides that:
Sec. 48. Scaling Down and Phase Out of
Activities of Agencies Within the Executive
Branch. — The heads of departments,
bureaus and offices and agencies are
hereby directed to identify their respective
activities which are no longer essential in
the delivery of public services and which
may be scaled down, phased out or
abolished, subject to civil service rules and
regulations. . . . Actual scaling down,
phasing out or abolition of the activities
shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office
of the President. (emphasis ours)
Said provision clearly mentions the acts of "scaling down,
phasing out and abolition" of offices only and does not cover
the creation of offices or transfer of functions. Nevertheless,
the act of creating and decentralizing is included in the
subsequent provision of Section 62, which provides that:
Sec. 62. Unauthorized organizational
charges. — Unless otherwise created by
law or directed by the President of the
Philippines, no organizational unit of
charges in key positions in any department
or agency shall be authorized in their
respective organization structures and be
funded from appropriations by this Act.
(emphasis ours)
The foregoing provision evidently shows that the President is
authorized to effect organizational charges including the
creation of offices in the department or agency concerned.
The contention of petitioner that the two provisions are riders
deserves scant consideration. Well settled is the rule that every
law has in its favor the presumption of constitutionality. 8 Unless
and until a specific provision of the law is declared invalid and
unconstitutional, the same is valid and biding for all intents and
purposes.
FINALS CONSTITUTION I ACJUCO 166
Another legal basis of E.O. No. 132 is Section 20, Book III of
E.O. No. 292 which states:
Sec. 20. Residual Powers. — Unless
Congress provides otherwise, the
President shall exercise such other powers
and functions vested in the President which
are provided for under the laws and which
are not specifically enumerated above or
which are not delegated by the President in
accordance with law. (emphasis ours)
This provision speaks of such other powers vested in the
President under the law. What law then which gives him the
power to reorganize? It is Presidential Decree No. 17729 which
amended Presidential Decree No. 1416. These decrees
expressly grant the President of the Philippines the continuing
authority to reorganize the national government, which
includes the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize
salaries and materials. The validity of these two decrees are
unquestionable. The 1987 Constitution clearly provides that
"all laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent
with this Constitution shall remain operative until amended,
repealed or revoked."10 So far, there is yet no law amending or
repealing said decrees. Significantly, the Constitution itself
recognizes future reorganizations in the government as what
is revealed in Section 16 of Article XVIII, thus:
Sec. 16. Career civil service employees
separated from service not for cause but as
a result of the . . . reorganization following
the ratification of this Constitution shall be
entitled to appropriate separation pay . . .
However, We can not consider E.O. No. 127 signed on
January 30, 1987 as a legal basis for the reorganization of the
BIR. E.O. No. 127 should be related to the second paragraph
of Section 11 of Republic Act No. 6656.
Section 11 provides inter alia:
xxx xxx xxx
In the case of the 1987 reorganization of
the executive branch, all departments and
agencies which are authorized by
executive orders promulgated by the
President to reorganize shall have ninety
days from the approval of this act within
which to implement their respective
reorganization plans in accordance with the
provisions of this Act. (emphasis ours)
Executive Order No. 127 was part of the 1987 reorganization
contemplated under said provision. Obviously, it had become
stale by virtue of the expiration of the ninety day deadline
period. It can not thus be used as a proper basis for the
reorganization of the BIR. Nevertheless, as shown earlier,
there are other legal bases to sustain the authority of the
President to issue the questioned E.O. NO. 132.
While the President's power to reorganize can not be denied,
this does not mean however that the reorganization itself is
properly made in accordance with law. Well-settled is the rule
that reorganization is regarded as valid provided it is pursued
in good faith. Thus, in Dario vs. Mison, this Court has had the
occasion to clarify that:
As a general rule, a reorganization is
carried out in "good faith" if it is for the
purpose of economy or to make
bureaucracy more efficient. In that event no
dismissal or separation actually occurs
because the position itself ceases to exist.
And in that case the security of tenure
would not be a Chinese wall. Be that as it
may, if the abolition which is nothing else
but a separation or removal, is done for
political reasons or purposely to defeat
security of tenure, or otherwise not in good
faith, no valid abolition takes place and
whatever abolition is done is void ab initio.
There is an invalid abolition as where there
is merely a change of nomenclature of
positions or where claims of economy are
belied by the existence of ample funds. 11
In this regard, it is worth mentioning that Section 2 of R. A. No.
6656 lists down the circumstances evidencing bad faith in the
removal of employees as a result of the reorganization, thus:
Sec. 2. No officer or employee in the career
service shall be removed except for a valid
cause and after due notice and hearing. A
valid cause for removal exists when,
pursuant to a bona fide reorganization, a
position has been abolished or rendered
redundant or there is a need to merge,
divide, or consolidate positions in order to
meet the exigencies of the service, or other
lawful causes allowed by the Civil Service
Law. The existence of any or some of the
following circumstances may be
considered as evidence of bad faith in the
removals made as a result of the
reorganization, giving rise to a claim for
reinstatement or reappointment by an
aggrieved party:
a) Where there is a significant increase in
the number of positions in the new staffing
pattern of the department or agency
concerned;
b) Where an office is abolished and another
performing substantially the same
functions is created;
c) Where incumbents are replaced by
those less qualified in terms of status of
appointment, performance and merit;
d) Where there is a reclassification of
offices in the department or agency
concerned and the reclassified offices
perform substantially the same functions as
the original offices;
e) Where the removal violates the order of
separation provided in Section 3 hereof.
A reading of some of the provisions of the questioned E.O. No.
132 clearly leads us to an inescapable conclusion that there
are circumstances considered as evidences of bad faith in the
reorganization of the BIR.
Section 1.1.2 of said executive order provides that:
FINALS CONSTITUTION I ACJUCO 167

1.1.2 The Intelligence and Investigation

Office and the Inspection Service are
abolished. An Intelligence and
Investigation Service is
hereby created to absorb the same
functions of the abolished office and
service. . . . (emphasis ours)

This provision is a clear illustration of the circumstance

mentioned in Section 2 (b) of R.A. No. 6656 that an office is
abolished and another one performing substantially the same
function is created.

Another circumstance is the creation of services and divisions

in the BIR resulting to a significant increase in the number of
positions in the said bureau as contemplated in paragraph (a)
of Section 2 of R.A. No. 6656. Under Section 1.3 of E.O. No.
132, the Information Systems Group has two newly created
Systems Services. Aside from this, six new divisions are also
created. Under Section 1.2.1, three more divisions of the
Assessment Service are formed. With these newly created
offices, there is no doubt that a significant increase of positions
will correspondingly follow.

Furthermore, it is perceivable that the non-reappointment of

the petitioner as Assistant Commissioner violates Section 4 of
R.A. No. 6656. Under said provision, officers holding
permanent appointments are given preference for appointment
to the new positions in the approved staffing pattern
comparable to their former positions or in case there are not
enough comparable positions to positions next lower in rank. It
is undeniable that petitioner is a career executive officer who
is holding a permanent position. Hence, he should have been
given preference for appointment in the position of Assistant
Commissioner. As claimed by petitioner, Antonio Pangilinan
who was one of those appointed as Assistant Commissioner,
"is an outsider of sorts to the Bureau, not having been an
incumbent officer of the Bureau at the time of the
reorganization." We should not lose sight of the second
paragraph of Section 4 of R.A. No. 6656 which explicitly states
that no new employees shall be taken in until all permanent
officers shall have been appointed for permanent position.

IN VIEW OF THE FOREGOING, the petition is granted, and

petitioner is hereby reinstated to his position as Assistant
Commissioner without loss of seniority rights and shall be
entitled to full backwages from the time of his separation from
service until actual reinstatement unless, in the meanwhile, he
would have reached the compulsory retirement age of sixty-
five years in which case, he shall be deemed to have retired at
such age and entitled thereafter to the corresponding
retirement benefits.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno,

Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and
Panganiban, JJ., concur.
FINALS CONSTITUTION I ACJUCO 168
G.R. No. 206666 January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH EJERCITO
ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule
64, in relation to Rule 65, both of the Revised Rules of Court,
by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially
prays for the issuance of the writ of certiorari annulling and
setting aside the April 1, 20131 and April 23, 20132 Resolutions
of the Commission on Elections (COMELEC), Second Division
and En bane, respectively, in SPA No. 13-211 (DC), entitled
"Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having
been rendered with grave abuse of discretion amounting to
lack or excess of jurisdiction; and (2) a Petition-in-
Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to
be declared the 2013 winning candidate for Mayor of the City
of Manila in view of private respondent former President
Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former
President Estrada, a former President of the Republic of the
Philippines, for the crime of plunder in Criminal Case No.
26558, entitled "People of the Philippines v. Joseph Ejercito
Estrada, et al." The dispositive part of the graft court’s decision
reads:
WHEREFORE, in view of all the foregoing, judgment is hereby
rendered in Criminal Case No. 26558 finding the accused,
Former President Joseph Ejercito Estrada, GUILTY beyond
reasonable doubt of the crime of PLUNDER, defined in and
penalized by Republic Act No. 7080, as amended. On the other
hand, for failure of the prosecution to prove and establish their
guilt beyond reasonable doubt, the Court finds the accused
Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court
hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under Republic
Act No. 7080, as amended by Republic Act No. 7659, is
Reclusion Perpetua to Death. There being no aggravating or
mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal
Code. Accordingly, the accused Former President Joseph
Ejercito Estrada is hereby sentenced to suffer the penalty of
Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual
absolute disqualification.
The period within which accused Former President Joseph
Ejercito Estrada has been under detention shall be credited to
him in full as long as he agrees voluntarily in writing to abide
by the same disciplinary rules imposed upon convicted
prisoners.
Moreover, in accordance with Section 2 of Republic Act No.
7080, as amended by Republic Act No. 7659, the Court hereby
declares the forfeiture in favor of the government of the
following:
(1) The total amount of Five Hundred Forty[-]Two
Million Seven Hundred Ninety[-]One Thousand
Pesos (₱545,291,000.00), with interest and income
earned, inclusive of the amount of Two Hundred
Million Pesos (₱200,000,000.00), deposited in the
name and account of the Erap Muslim Youth
Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million
Pesos (₱189,000,000.00), inclusive of interests and
income earned, deposited in the Jose Velarde
account.
(3) The real property consisting of a house and lot
dubbed as "Boracay Mansion" located at #100 11th
Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada
and Atty. Edward S. Serapio are hereby ordered cancelled and
released to the said accused or their duly authorized
representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual
accounting and auditing procedures. Likewise, the hold-
departure orders issued against the said accused are hereby
recalled and declared functus oficio. 4
On October 25, 2007, however, former President Gloria
Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former President
Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing
inmates who have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention
for six and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to
no longer seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred
upon me by the Constitution, I hereby grant executive
clemency to JOSEPH EJERCITO ESTRADA, convicted by the
Sandiganbayan of Plunder and imposed a penalty of Reclusion
Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force
and in full, including all writs and processes issued by the
Sandiganbayan in pursuance hereof, except for the bank
account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO
ESTRADA, this pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day of
October, in the year of Our Lord, two thousand and seven.
FINALS CONSTITUTION I ACJUCO 169
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada
"received and accepted"6 the pardon by affixing his signature
beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a
Certificate of Candidacy7 for the position of President. During
that time, his candidacy earned three oppositions in the
COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Course and Cancel Certificate of Candidacy" filed by Rev. Elly
Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by
Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC),
a "Petition to Disqualify Estrada Ejercito, Joseph M.from
Running as President due to Constitutional Disqualification
and Creating Confusion to the Prejudice of Estrada, Mary Lou
B" filed by Mary Lou Estrada. In separate Resolutions 8 dated
January 20, 2010 by the COMELEC, Second Division,
however, all three petitions were effectively dismissed on the
uniform grounds that (i) the Constitutional proscription on
reelection applies to a sitting president; and (ii) the pardon
granted to former President Estrada by former President
Arroyo restored the former’s right to vote and be voted for a
public office. The subsequent motions for reconsideration
thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections,
however, former President Estrada only managed to garner
the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for certiorari,
which was docketed as G.R. No. 191988, entitled "Atty. Evilio
C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and
Commission on Elections." But in a Resolution9 dated August
31, 2010, the Court dismissed the aforementioned petition on
the ground of mootness considering that former President
Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more
ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that ofthe
Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case,
filed a Petition for Disqualification against former President
Estrada before the COMELEC. The petition was docketed as
SPA No. 13-211 (DC). Risos Vidal anchored her petition on the
theory that "[Former President Estrada] is Disqualified to Run
for Public Office because of his Conviction for Plunder by the
Sandiganbayan in Criminal Case No. 26558 entitled ‘People of
the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him to
Suffer the Penalty of Reclusion Perpetuawith Perpetual
Absolute Disqualification."11 She relied on Section 40 of the
Local Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment, within two
(2) years after serving sentence; (b) Those removed
from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the
oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical
cases here or abroad;
(f) Permanent residents in a foreign country or those
who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity
of this Code; and
(g) The insane or feeble minded. (Emphasis
supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent, or has
been sentenced by final judgmentfor subversion, insurrection,
rebellion, or for any offense for which he has been sentenced
to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a
candidate and to hold any public office, unless he has been
given plenary pardon or granted amnesty. (Emphases
supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second
Division, dismissed the petition for disqualification, the fallo of
which reads:
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving taken
judicial cognizance of the consolidated resolution for SPA No.
09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010
En Banc resolution affirming it, this Commission will not be
labor the controversy further. Moreso, [Risos-Vidal] failed to
present cogent proof sufficient to reverse the standing
pronouncement of this Commission declaring categorically that
[former President Estrada’s] right to seek public office has
been effectively restored by the pardon vested upon him by
former President Gloria M. Arroyo. Since this Commission has
already spoken, it will no longer engage in disquisitions of a
settled matter lest indulged in wastage of government
resources."13
The subsequent motion for reconsideration filed by Risos-Vidal
was denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction
by filing the present petition. She presented five issues for the
Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN HOLDING
THAT RESPONDENT ESTRADA’S PARDON WAS
NOT CONDITIONAL;
FINALS CONSTITUTION I ACJUCO 170
II. RESPONDENT COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN NOT FINDING
THAT RESPONDENT ESTRADA IS DISQUALIFIED
TO RUN AS MAYOR OF MANILA UNDER SEC. 40
OF THE LOCAL GOVERNMENTCODE OF 1991
FOR HAVING BEEN CONVICTED OF PLUNDER,
AN OFFENSE INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN
DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT THE
CASE INVOLVES THE SAME OR SIMILAR ISSUES
IT ALREADY RESOLVED IN THE CASES OF
"PORMENTO VS. ESTRADA", SPA NO. 09-028
(DC) AND IN "RE: PETITION TO DISQUALIFY
ESTRADA EJERCITO, JOSEPH M. FROM
RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104
(DC);
IV. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN NOT
RULING THAT RESPONDENT ESTRADA’S
PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL
ABSOLUTE DISQUALIFICATION FROM SEEKING
PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN NOT
HAVING EXERCISED ITS POWER TO MOTU
PROPRIO DISQUALIFY RESPONDENT ESTRADA
IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND
ABSOLUTE DISQUALIFICATION TO SEEK
PUBLIC OFFICE AND TO VOTE RESULTING
FROM HIS CRIMINAL CONVICTION FOR
PLUNDER.14
While this case was pending beforethe Court, or on May 13,
2013, the elections were conducted as scheduled and former
President Estrada was voted into office with 349,770 votes cast
in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s
opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the Court in
a Resolution15 dated June 25, 2013. Lim subscribed to Risos-
Vidal’s theory that former President Estrada is disqualified to
run for and hold public office as the pardon granted to the latter
failed to expressly remit his perpetual disqualification. Further,
given that former President Estrada is disqualified to run for
and hold public office, all the votes obtained by the latter should
be declared stray, and, being the second placer with 313,764
votes to his name, he (Lim) should be declared the rightful
winning candidate for the position of Mayor of the City of
Manila.
The Issue
Though raising five seemingly separate issues for resolution,
the petition filed by Risos-Vidal actually presents only one
essential question for resolution by the Court, that is, whether
or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former
President Estrada is qualified to vote and be voted for in public
office as a result of the pardon granted to him by former
President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out
that the pardon granted to former President Estrada was
conditional as evidenced by the latter’s express acceptance
thereof. The "acceptance," she claims, is an indication of the
conditional natureof the pardon, with the condition being
embodied in the third Whereas Clause of the pardon, i.e.,
"WHEREAS, Joseph Ejercito Estrada has publicly committed
to no longer seek any elective position or office." She explains
that the aforementioned commitment was what impelled
former President Arroyo to pardon former President Estrada,
without it, the clemency would not have been extended. And
any breach thereof, that is, whenformer President Estrada filed
his Certificate of Candidacy for President and Mayor of the City
of Manila, he breached the condition of the pardon; hence, "he
ought to be recommitted to prison to serve the unexpired
portion of his sentence x x x and disqualifies him as a
candidate for the mayoralty [position] of Manila." 16
Nonetheless, Risos-Vidal clarifies that the fundamental basis
upon which former President Estrada mustbe disqualified from
running for and holding public elective office is actually the
proscription found in Section 40 of the LGC, in relation to
Section 12 ofthe OEC. She argues that the crime of plunder is
both an offense punishable by imprisonment of one year or
more and involving moral turpitude; such that former President
Estrada must be disqualified to run for and hold public elective
office.
Even with the pardon granted to former President Estrada,
however, Risos-Vidal insists that the same did not operate to
make available to former President Estrada the exception
provided under Section 12 of the OEC, the pardon being
merely conditional and not absolute or plenary. Moreover,
Risos-Vidal puts a premium on the ostensible requirements
provided under Articles 36 and 41 of the Revised Penal Code,
to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms
of the pardon.
A pardon shall in no case exempt the culprit from the payment
of the civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction
for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted
in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is
not enough that a pardon makes a general statement that such
pardon carries with it the restoration of civil and political rights.
By virtue of Articles 36 and 41, a pardon restoring civil and
political rights without categorically making mention what
specific civil and political rights are restored "shall not work to
restore the right to hold public office, or the right of suffrage;
nor shall it remit the accessory penalties of civil interdiction and
perpetual absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal." 17 In other words,
FINALS CONSTITUTION I ACJUCO 171
she considers the above constraints as mandatory
requirements that shun a general or implied restoration of civil
and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices
Teodoro R. Padilla and Florentino P. Feliciano in Monsanto v.
Factoran, Jr.18 to endorse her position that "[t]he restoration of
the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how intensely
arguable, but must be statedin express, explicit, positive and
specific language."
Applying Monsantoto former President Estrada’s case, Risos-
Vidal reckons that "such express restoration is further
demanded by the existence of the condition in the [third]
[W]hereas [C]lause of the pardon x x x indubitably indicating
that the privilege to hold public office was not restored to
him."19
On the other hand, the Office ofthe Solicitor General (OSG) for
public respondent COMELEC, maintains that "the issue of
whether or not the pardon extended to [former President
Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way back
in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104,
there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada]
disqualified to run and be voted as mayor of the City of Manila
in the absence of any new argument that would warrant its
reversal. To be sure, public respondent COMELEC correctly
exercised its discretion in taking judicial cognizance of the
aforesaid rulings which are known toit and which can be
verified from its own records, in accordance with Section 2,
Rule 129 of the Rules of Court on the courts’ discretionary
power to take judicial notice of matters which are of public
knowledge, orare capable of unquestionable demonstration, or
ought to be known to them because of their judicial
functions."20
Further, the OSG contends that "[w]hile at first glance, it is
apparent that [former President Estrada’s] conviction for
plunder disqualifies him from running as mayor of Manila under
Section 40 of the [LGC], the subsequent grant of pardon to him,
however, effectively restored his right to run for any public
office."21 The restoration of his right to run for any public office
is the exception to the prohibition under Section 40 of the LGC,
as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code,
i.e., the express restoration/remission of a particular right to be
stated in the pardon, the OSG asserts that "an airtight and rigid
interpretation of Article 36 and Article 41 of the [RPC] x x x
would be stretching too much the clear and plain meaning of
the aforesaid provisions."22 Lastly, taking into consideration
the third Whereas Clause of the pardon granted to former
President Estrada, the OSG supports the position that it "is not
an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions." 24
For his part, former President Estrada presents the following
significant arguments to defend his stay in office: that "the
factual findings of public respondent COMELEC, the
Constitutional body mandated to administer and enforce all
laws relative to the conduct of the elections, [relative to the
absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective
office] are binding [and conclusive] on this Honorable Supreme
Court;" that he "was granted an absolute pardon and thereby
restored to his full civil and political rights, including the right to
seek public elective office such as the mayoral (sic) position in
the City of Manila;" that "the majority decision in the case of
Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was
erroneously cited by both Vidal and Lim as authority for their
respective claims, x x x reveal that there was no discussion
whatsoever in the ratio decidendi of the Monsanto case as to
the alleged necessity for an expressed restoration of the ‘right
to hold public office in the pardon’ as a legal prerequisite to
remove the subject perpetual special disqualification;" that
moreover, the "principal question raised in this Monsanto case
is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to
reinstatement toher former position without need of a new
appointment;" that his "expressed acceptance [of the pardon]
is not proof that the pardon extended to [him] is conditional and
not absolute;" that this case is a mere rehash of the casesfiled
against him during his candidacy for President back in 2009-
2010; that Articles 36 and 41 of the Revised Penal Code
"cannot abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that the text
of the pardon granted to him substantially, if not fully, complied
with the requirement posed by Article 36 of the Revised Penal
Code as it was categorically stated in the said document that
he was "restored to his civil and political rights;" that since
pardon is an act of grace, it must be construed favorably in
favor of the grantee;25 and that his disqualification will result in
massive disenfranchisement of the hundreds of thousands of
Manileños who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon
that fully restored allhis civil and political rights, which naturally
includes the right to seek public elective office, the focal point
of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41 of the
Revised Penal Code. The only reasonable, objective, and
constitutional interpretation of the language of the pardon is
that the same in fact conforms to Articles 36 and 41 of the
Revised Penal Code. Recall that the petition for disqualification
filed by Risos-Vidal against former President Estrada,
docketed as SPA No. 13-211 (DC), was anchored on Section
40 of the LGC, in relation to Section 12 of the OEC, that is,
having been convicted of a crime punishable by imprisonment
of one year or more, and involving moral turpitude, former
President Estrada must be disqualified to run for and hold
public elective office notwithstanding the fact that he is a
grantee of a pardon that includes a statement expressing "[h]e
is hereby restored to his civil and political rights." Risos-Vidal
theorizes that former President Estrada is disqualified from
running for Mayor of Manila inthe May 13, 2013 Elections, and
remains disqualified to hold any local elective post despite the
presidential pardon extended to him in 2007 by former
President Arroyo for the reason that it (pardon) did not
expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his
(former President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the Revised
Penal Code as the foundations of her theory.
It is insisted that, since a textual examination of the pardon
given to and accepted by former President Estrada does not
actually specify which political right is restored, it could be
inferred that former President Arroyo did not deliberately intend
to restore former President Estrada’s rights of suffrage and to
hold public office, orto otherwise remit the penalty of perpetual
FINALS CONSTITUTION I ACJUCO 172
absolute disqualification. Even if her intention was the contrary,
the same cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and
Section 5 of Article IX-C, provides that the President of the
Philippines possesses the power to grant pardons, along with
other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable
recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that
the only instances in which the President may not extend
pardon remain to be in: (1) impeachment cases; (2) cases that
have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in
which there was no favorable recommendation coming from
the COMELEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the
pardoning power of the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which
were decided under the 1935 Constitution,wherein the
provision granting pardoning power to the President shared
similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that
"subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by
legislative action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that, under
the present Constitution, "a pardon, being a presidential
prerogative, should not be circumscribed by legislative action."
Thus, it is unmistakably the long-standing position of this Court
that the exercise of the pardoning power is discretionary in the
President and may not be interfered with by Congress or the
Court, except only when it exceeds the limits provided for by
the Constitution.
This doctrine of non-diminution or non-impairment of the
President’s power of pardon by acts of Congress, specifically
through legislation, was strongly adhered to by an
overwhelming majority of the framers of the 1987 Constitution
when they flatly rejected a proposal to carve out an exception
from the pardoning power of the President in the form of
"offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment
of a law. The following is the pertinent portion lifted from the
Record of the Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be recognized to
introduce an amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations
of corrupt practices laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first,
violations of corrupt practices may include a very little offense
like stealing ₱10; second, which I think is more important, I get
the impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future
Presidents will bebad and dishonest and, consequently, their
acts will be lacking in wisdom. Therefore, this Article seems to
contribute towards the creation of an anti-President
Constitution or a President with vast responsibilities but no
corresponding power except to declare martial law. Therefore,
I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react
to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of
Commissioner Davide because of the fact that similar to the
provisions on the Commission on Elections, the
recommendation of that Commission is required before
executive clemency isgranted because violations of the
election laws go into the very political life of the country.
With respect to violations of our Corrupt Practices Law, we felt
that it is also necessary to have that subjected to the same
condition because violation of our Corrupt Practices Law may
be of such magnitude as to affect the very economic systemof
the country. Nevertheless, as a compromise, we provided here
that it will be the Congress that will provide for the classification
as to which convictions will still require prior recommendation;
after all, the Congress could take into account whether or not
the violation of the Corrupt Practices Law is of such magnitude
as to affect the economic life of the country, if it is in the millions
or billions of dollars. But I assume the Congress in its collective
wisdom will exclude those petty crimes of corruption as not to
require any further stricture on the exercise of executive
clemency because, of course, there is a whale of a difference
if we consider a lowly clerk committing malversation of
government property or funds involving one hundred pesos.
But then, we also anticipate the possibility that the corrupt
practice of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and then
he goes through all the judicial processes and later on, a
President who may have close connections with him or out of
improvident compassion may grant clemency under such
conditions. That is why we left it to Congress to provide and
make a classification based on substantial distinctions
between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the word
GROSS or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better
distinction because "GRAVE" or "GROSS" can be
misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed
amendment?
THE PRESIDENT. Please proceed.
FINALS CONSTITUTION I ACJUCO 173
MR. RODRIGO. The power to grant executive clemency is
essentially an executive power, and that is precisely why it is
called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude into
this prerogative of the executive. Then it limits the power of
Congress to subtract from this prerogative of the President to
grant executive clemency by limiting the power of Congress to
only corrupt practices laws. There are many other crimes more
serious than these. Under this amendment, Congress cannot
limit the power of executive clemency in cases of drug
addiction and drug pushing which are very, very serious crimes
that can endanger the State; also, rape with murder,
kidnapping and treason. Aside from the fact that it is a
derogation of the power of the President to grant executive
clemency, it is also defective in that it singles out just one kind
of crime. There are far more serious crimes which are not
included.
MR. REGALADO. I will just make one observation on that. We
admit that the pardoning power is anexecutive power. But even
in the provisions on the COMELEC, one will notice that
constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any
violation of election laws.
At any rate, Commissioner Davide, as the principal proponent
of that and as a member of the Committee, has explained in
the committee meetings we had why he sought the inclusion
of this particular provision. May we call on Commissioner
Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal.
We have just approved the Article on Accountability of Public
Officers. Under it, it is mandated that a public office is a public
trust, and all government officers are under obligation to
observe the utmost of responsibility, integrity, loyalty and
efficiency, to lead modest lives and to act with patriotism and
justice.
In all cases, therefore, which would go into the verycore of the
concept that a public office is a public trust, the violation is itself
a violation not only of the economy but the moral fabric of
public officials. And that is the reason we now want that if there
is any conviction for the violation of the Anti-Graft and Corrupt
Practices Act, which, in effect, is a violation of the public trust
character of the public office, no pardon shall be extended to
the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence
of the convicting court, but the Committee left it entirely to the
legislature to formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious cases of
violation of the Anti-Graft and Corrupt Practices Act. Perhaps
this is now the best time, since we have strengthened the
Article on Accountability of Public Officers, to accompany it
with a mandate that the President’s right to grant executive
clemency for offenders or violators of laws relating to the
concept of a public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion.
Madam President, over and over again, we have been saying
and arguing before this Constitutional Commission that we are
emasculating the powers of the presidency, and this provision
to me is another clear example of that. So, I speak against this
provision. Even the 1935 and the 1973 Constitutions do not
provide for this kind of provision.
I am supporting the amendment by deletion of Commissioner
Tan.
MR. ROMULO. Commissioner Tingson would like to be
recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the
amendment by deletion because I am in sympathy with the
stand of Commissioner Francisco "Soc" Rodrigo. I do believe
and we should remember that above all the elected or
appointed officers of our Republic, the leader is the President.
I believe that the country will be as the President is, and if we
systematically emasculate the power of this presidency, the
time may come whenhe will be also handcuffed that he will no
longer be able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this
particular line.
MR. ROMULO. Commissioner Colayco would like to be
recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend
the approval of proposals, but now I find that the proposal of
Commissioner Tan is worthy of approval of this body.
Why are we singling out this particular offense? There are
other crimes which cast a bigger blot on the moral character of
the public officials.
Finally, this body should not be the first one to limit the almost
absolute power of our Chief Executive in deciding whether to
pardon, to reprieve or to commute the sentence rendered by
the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if this
is allowed to stay, it would mean that the President’s power
togrant pardon or reprieve will be limited to the cases decided
by the Anti-Graft Court, when as already stated, there are
many provisions inthe Revised Penal Code that penalize more
serious offenses.
Moreover, when there is a judgment of conviction and the case
merits the consideration of the exercise of executive clemency,
FINALS CONSTITUTION I ACJUCO 174
usually under Article V of the Revised Penal Code the judge
will recommend such exercise of clemency. And so, I am in
favor of the amendment proposed by Commissioner Tan for
the deletion of this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor
Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will
again chip more powers from the President. In case of other
criminals convicted in our society, we extend probation to them
while in this case, they have already been convicted and we
offer mercy. The only way we can offer mercy to them is
through this executive clemency extended to them by the
President. If we still close this avenue to them, they would be
prejudiced even worse than the murderers and the more
vicious killers in our society. I do not think they deserve this
opprobrium and punishment under the new Constitution.
I am in favor of the proposed amendment of Commissioner
Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers
to submit this to the floor and also because of the objection of
the main proponent, Commissioner Davide. So we feel that the
Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed
amendment of Commissioner Tan to delete the last sentence
of Section 17 appearing on lines 7, 8 and 9, please raise their
hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few
Members raised their hand.)
The results show 34 votes in favor and 4 votes against; the
amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles
36 and 41 of the Revised Penal Code cannot, in any way, serve
to abridge or diminish the exclusive power and prerogative of
the President to pardon persons convicted of violating penal
statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that
the said Articles contain specific textual commands which must
be strictly followed in order to free the beneficiary of
presidential grace from the disqualifications specifically
prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms
of the pardon.
A pardon shall in no case exempt the culprit from the payment
of the civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction
for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted
in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as
proposed by Risos-Vidal, is unwarranted, especially so if it will
defeat or unduly restrict the power of the President to grant
executive clemency.
It is well-entrenched in this jurisdiction that where the words of
a statute are clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without attempted
interpretation. Verba legis non est recedendum. From the
words of a statute there should be no departure. 31 It is this
Court’s firm view that the phrase in the presidential pardon at
issue which declares that former President Estrada "is hereby
restored to his civil and political rights" substantially complies
with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with
Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public office
in the pardon granted to former President Estrada, as required
by Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned
codal provisions must be followed by the President, as they do
not abridge or diminish the President’s power to extend
clemency. He opines that they do not reduce the coverage of
the President’s pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or
form. They only provide a procedural prescription. They are not
concerned with areas where or the instances when the
President may grant pardon; they are only concerned with how
he or she is to exercise such power so that no other
governmental instrumentality needs to intervene to give it full
effect.
All that Articles 36 and 41 do is prescribe that, if the President
wishes to include in the pardon the restoration of the rights of
suffrage and to hold public office, or the remission of the
accessory penalty of perpetual absolute disqualification,he or
she should do so expressly. Articles 36 and 41 only ask that
the President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the
President retains the power to make such restoration or
remission, subject to a prescription on the manner by which he
or she is to state it.32
With due respect, I disagree with the overbroad statement that
Congress may dictate as to how the President may exercise
his/her power of executive clemency. The form or manner by
which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives
FINALS CONSTITUTION I ACJUCO 175
cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation
of powers deeply ingrained in our system of government which
"ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling
within its own constitutionally allocated sphere."33 Moreso, this
fundamental principle must be observed if noncompliance with
the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive
Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code
should be construed in a way that will give full effect to the
executive clemency granted by the President, instead of
indulging in an overly strict interpretation that may serve to
impair or diminish the import of the pardon which emanated
from the Office of the President and duly signed by the Chief
Executive himself/herself. The said codal provisions must be
construed to harmonize the power of Congress to define
crimes and prescribe the penalties for such crimes and the
power of the President to grant executive clemency. All that the
said provisions impart is that the pardon of the principal penalty
does notcarry with it the remission of the accessory penalties
unless the President expressly includes said accessory
penalties in the pardon. It still recognizes the Presidential
prerogative to grant executive clemency and, specifically, to
decide to pardon the principal penalty while excluding its
accessory penalties or to pardon both. Thus, Articles 36 and
41 only clarify the effect of the pardon so decided upon by the
President on the penalties imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former
President Estrada shows that both the principal penalty of
reclusion perpetua and its accessory penalties are included in
the pardon. The first sentence refers to the executive clemency
extended to former President Estrada who was convicted by
the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned
which relieved him of imprisonment. The sentence that
followed, which states that "(h)e is hereby restored to his civil
and political rights," expressly remitted the accessory penalties
that attached to the principal penalty of reclusion perpetua.
Hence, even if we apply Articles 36 and 41 of the Revised
Penal Code, it is indubitable from the textof the pardon that the
accessory penalties of civil interdiction and perpetual absolute
disqualification were expressly remitted together with the
principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is
recognized by law as falling under the whole gamut of civil and
political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the
"Citizenship Retention and Reacquisition Act of 2003," reads
as follows:
Section 5. Civil and Political Rights and Liabilities.– Those who
retain or reacquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the
Philippines and the following conditions: (1) Those intending to
exercise their right of suffrage must meet the requirements
under Section 1, Article V of the Constitution, Republic Act No.
9189, otherwise known as "The Overseas Absentee Voting Act
of 2003" and other existing laws;
(2) Those seeking elective public office in the
Philippines shall meet the qualifications for holding
such public office as required by the Constitution and
existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath;
(3) Those appointed to any public office shall
subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance
to the country where they took that oath; (4) Those
intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which theyare
naturalized citizens; and/or
(b) are in active service as commissioned
or non commissioned officers in the armed
forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political
Rights, to which the Philippines is a signatory, acknowledges
the existence of said right. Article 25(b) of the Convention
states: Article 25
Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in Article 2 and without
unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections
which shall be by universal and equal suffrage and shall be
held by secret ballot, guaranteeing the free expression of the
will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on
Elections,35 the Court unequivocally referred to the right to
seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for elective
office specific only to Filipino citizens who re-acquire their
citizenship under Section 3 of R.A. No. 9225. It is the operative
act that restores their right to run for public office. The
petitioner’s failure to comply there with in accordance with the
exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political
right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to
run for and hold any elective office in the Philippines.
(Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public
elective office is unequivocally considered as a political right.
Hence, the Court reiterates its earlier statement that the pardon
granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the
pardon granted tohim, he regained his FULL civil and political
rights – including the right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond the
plain meaning of said penal provisions; and prescribes a formal
FINALS CONSTITUTION I ACJUCO 176
requirement that is not only unnecessary but, if insisted upon,
could be in derogation of the constitutional prohibition relative
to the principle that the exercise of presidential pardon cannot
be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions
in Monsanto v. Factoran, Jr.36 to justify her argument that an
absolute pardon must expressly state that the right to hold
public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the
learned views of Justices Teodoro R. Padilla and Florentino P.
Feliciano are to be respected, they do not form partof the
controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion
in Monsanto, penned by no less than Chief Justice Marcelo B.
Fernan, reveals no statement that denotes adherence to a
stringent and overly nuanced application of Articles 36 and 41
of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in extending
executive clemency, even if the intent of the President can
otherwise be deduced from the text or words used in the
pardon. Furthermore, as explained above, the pardon here is
consistent with, and not contrary to, the provisions of Articles
36 and 41.
The disqualification of former President Estrada under Section
40 of the LGC in relation to Section 12 of the OEC was
removed by his acceptance of the absolute pardon granted to
him.
Section 40 of the LGC identifies who are disqualified from
running for any elective local position. Risos-Vidal argues that
former President Estrada is disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving
sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar
prohibitions, but it provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given
plenary pardon or granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President
Estrada’s conviction for plunder disqualifies him from running
for the elective local position of Mayor of the City of Manila
under Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada
effectively restored his right to seek public elective office. This
is made possible by reading Section 40(a) of the LGC in
relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a)
of the LGC is worded in absolute terms, Section 12 of the OEC
provides a legal escape from the prohibition – a plenary pardon
or amnesty. In other words, the latter provision allows any
person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral
turpitude, inter alia, to run for and hold any public office,
whether local or national position.
Take notice that the applicability of Section 12 of the OEC to
candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned
provision as one of the legal remedies that may be availed of
to disqualify a candidate in a local election filed any day after
the last day for filing of certificates of candidacy, but not later
than the date of proclamation.38 The pertinent ruling in the
Jalosjos case is quoted as follows:
What is indisputably clear is that false material representation
of Jalosjos is a ground for a petition under Section 78.
However, since the false material representation arises from a
crime penalized by prision mayor, a petition under Section 12
ofthe Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner
has a choice whether to anchor his petition on Section 12 or
Section 78 of the Omnibus Election Code, or on Section 40 of
the Local Government Code. The law expressly provides
multiple remedies and the choice of which remedy to adopt
belongs to petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to
make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular
clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada
has publicly committed to no longer seek any elective position
or office," neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored.
This is especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the unqualified
use of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential
part of an act as it is an introductory or preparatory clause that
explains the reasons for the enactment, usually introduced by
the word "whereas."40 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the whereas
clause at issue is not an integral part of the decree of the
pardon, and therefore, does not by itself alone operate to make
the pardon conditional or to make its effectivity contingent upon
the fulfilment of the aforementioned commitment nor to limit the
scope of the pardon.
On this matter, the Court quotes with approval a relevant
excerpt of COMELEC Commissioner Maria Gracia Padaca’s
separate concurring opinion in the assailed April 1, 2013
Resolution of the COMELEC in SPA No. 13-211 (DC), which
captured the essence of the legal effect of preambular
paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with respect
to the 3rd "whereas clause" or preambular paragraph of the
decree of pardon. It states that "Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or
office." On this contention, the undersigned reiterates the ruling
of the Commission that the 3rd preambular paragraph does not
have any legal or binding effect on the absolute nature of the
pardon extended by former President Arroyo to herein
Respondent. This ruling is consistent with the traditional and
customary usage of preambular paragraphs. In the case of
Echegaray v. Secretary of Justice, the Supreme Court ruled on
the legal effect of preambular paragraphs or whereas clauses
on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is
merely an introduction to show its intent or purposes. It cannot
be the origin of rights and obligations. Where the meaning of a
FINALS CONSTITUTION I ACJUCO 177
statute is clear and unambiguous, the preamble can neither
expand nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the same
in the text of the pardon itself. Since former President Arroyo
did not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular
clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s
silence on former President Estrada’s decision torun for
President in the May 2010 elections against, among others, the
candidate of the political party of former President Arroyo, after
the latter’s receipt and acceptance of the pardon speaks
volume of her intention to restore him to his rights to suffrage
and to hold public office.
Where the scope and import of the executive clemency
extended by the President is in issue, the Court must turn to
the only evidence available to it, and that is the pardon itself.
From a detailed review ofthe four corners of said document,
nothing therein gives an iota of intimation that the third
Whereas Clause is actually a limitation, proviso, stipulation or
condition on the grant of the pardon, such that the breach of
the mentioned commitment not to seek public office will result
ina revocation or cancellation of said pardon. To the Court,
what it is simply is a statement of fact or the prevailing situation
at the time the executive clemency was granted. It was not
used as a condition to the efficacy orto delimit the scope of the
pardon.
Even if the Court were to subscribe to the view that the third
Whereas Clausewas one of the reasons to grant the pardon,
the pardon itself does not provide for the attendant
consequence of the breach thereof. This Court will be hard put
to discern the resultant effect of an eventual infringement. Just
like it will be hard put to determine which civil or political rights
were restored if the Court were to take the road suggested by
Risos-Vidal that the statement "[h]e is hereby restored to his
civil and political rights" excludes the restoration of former
President Estrada’s rights to suffrage and to hold public office.
The aforequoted text ofthe executive clemency granted does
not provide the Court with any guide asto how and where to
draw the line between the included and excluded political
rights.
Justice Leonen emphasizes the point that the ultimate issue for
resolution is not whether the pardon is contingent on the
condition that former President Estrada will not seek janother
elective public office, but it actually concerns the coverage of
the pardon – whether the pardon granted to former President
Estrada was so expansive as to have restored all his political
rights, inclusive of the rights of suffrage and to hold public
office. Justice Leonen is of the view that the pardon in question
is not absolute nor plenary in scope despite the statement that
former President Estrada is "hereby restored to his civil and
political rights," that is, the foregoing statement restored to
former President Estrada all his civil and political rights except
the rights denied to him by the unremitted penalty of perpetual
absolute disqualification made up of, among others, the rights
of suffrage and to hold public office. He adds that had the
President chosen to be so expansive as to include the rights of
suffrage and to hold public office, she should have been more
clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and
political rights," to the mind of the Court, iscrystal clear – the
pardon granted to former President Estrada was absolute,
meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term "political
rights"adverted to has a settled meaning in law and
jurisprudence.
With due respect, I disagree too with Justice Leonen that the
omission of the qualifying word "full" can be construed as
excluding the restoration of the rights of suffrage and to hold
public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political
rights" used alone without any qualification. How to ascribe to
the latter term the meaning that it is "partial" and not "full" defies
one’s understanding. More so, it will be extremely difficult to
identify which of the political rights are restored by the pardon,
when the text of the latter is silent on this matter. Exceptions to
the grant of pardon cannot be presumed from the absence of
the qualifying word "full" when the pardon restored the "political
rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the
pardon granted to former President Estrada was absolute in
the absence of a clear, unequivocal and concrete factual basis
upon which to anchor or support the Presidential intent to grant
a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the
pardon can withstand close scrutiny even under the provisions
of Articles 36 and 41 of the Revised Penal Code.
The COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-
Vidal, the COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.
The Court has consistently held that a petition for
certiorariagainst actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patentand
substantial denial of due process, because the COMELEC is
presumed to be most competent in matters falling within its
domain.43
As settled in jurisprudence, grave abuse of discretion is the
arbitrary exercise of power due to passion, prejudice or
personal hostility; or the whimsical, arbitrary, or capricious
exercise of power that amounts to an evasion or refusal to
perform a positive duty enjoined by law or to act at all in
contemplation of law. For an act to be condemned as having
been done with grave abuse of discretion, such an abuse must
be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the
assailed COMELEC Resolutions were issued in a "whimsical,
arbitrary or capricious exercise of power that amounts to an
evasion orrefusal to perform a positive duty enjoined by law"
or were so "patent and gross" as to constitute grave abuse of
discretion.
On the foregoing premises and conclusions, this Court finds it
unnecessary to separately discuss Lim's petition-in-
intervention, which substantially presented the same
arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-
inintervention are DISMISSED. The Resolution dated April 1,
FINALS CONSTITUTION I ACJUCO 178

2013 of the Commission on Elections, Second Division, and

the Resolution dated April 23, 2013 of the Commission on
Elections, En bane, both in SPA No. 13-211 (DC), are
AFFIRMED.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 179
G.R. No. L-1278 January 21, 1949
LORETO BARRIOQUINTO and NORBERTO
JIMENEZ, petitioners,
vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE and
FELICISIMO OCAMPO, as Commissioners of the
Fourteenth Guerrilla Amnesty Commission, respondents.
Roseller T. Lim for petitioners.
Antonio Belmonte for respondents.
FERIA, J.:
This is a special action of mandamus instituted by the
petitioners against the respondents who composed the 14th
Guerrilla Amnesty Commission, to compel the latter to act and
decide whether or not the petitioners are entitled to the benefits
of amnesty.
Petitioners Norberto Jimenez and Loreto Barrioquinto were
charged with the crime of murder. As the latter had not yet
been arrested the case proceeded against the former, and
after trial Court of First Instance of Zamboanga sentenced
Jimenez to life imprisonment. Before the period for perfecting
an appeal had expired, the defendant Jimenez became aware
of the Proclamation No. 8, dated September 7, 1946, which
grants amnesty in favor of all persons who may be charged
with an act penalized under the Revised Penal Code in
furtherance of the resistance to the enemy or against persons
aiding in the war efforts of the enemy, and committed during
the period from December 8, 1941, to the date when particular
area of the Philippines where the offense was actually
committed was liberated from enemy control and occupation,
and said Jimenez decided to submit his case to the Guerrilla
Amnesty Commission presided by the respondents herein, and
the other petitioner Loreto Barrioquinto, who had then been
already apprehended, did the same.
After a preliminary hearing had started, the Amnesty
Commission, prescribed by the respondents, issued on
January 9, 1947, an order returning the cases of the petitioners
to the Court of First Instance of Zamboanga, without deciding
whether or not they are entitled to the benefits of he said
Amnesty Proclamation, on the ground that inasmuch as neither
Barrioquinto nor Jimenez have admitted having committed the
offense, because Barrioquinto alleged that it was Hipolito
Tolentino who shot and killed the victim, they cannot invoke the
benefits of amnesty.
The Amnesty Proclamation of September 7, 1946, issued by
the President with the concurrence of Congress of the
Philippines, reads in part as follows:
WHEREAS, since the inception of the war until the
liberation of the different areas comprising the
territory of the Philippines, volunteer armed forces of
Filipinos and for of other nationalities operated as
guerrillas and other patriotic individuals and groups
pursued activities in opposition to the forces and
agents of the Japanese Empire in the invasion and
occupation of the Philippines;
WHEREAS, members of such forces, in their
determined efforts to resist the enemy, and to bring
about his ultimate defeat, committed acts penalized
under the Revised Penal Code;
WHEREAS, charges have been presented in the
courts against many members of these resistance
forces, for such acts;
WHEREAS, the fact that such acts were committed
in furtherance of the resistance to the enemy is not a
valid defense under the laws of the Philippines;
WHEREAS, the persons so accused should not be
regarded as criminals but rather as patriots and
heroes who have rendered invaluable service to the
nation; and
WHEREAS, it is desirable that without the least
possible delay, these persons be freed form the
indignity and the jeopardy to which they are now
being subjected;
NOW, THEREFORE, I Manuel Roxas, President of
the Philippines in accordance with the provisions of
Article VII, section 10, paragraph 6 of the
Constitution, do hereby declare and proclaim an
amnesty inn favor of al persons who committed any
act penalized under the Revised Penal Code in
furtherance of the resistance to the enemy or against
persons aiding in the war effort of the enemy, and
committed during the period from December 8, 1941
to the date when each particular area of the
Philippines was actually liberated from the enemy
control and occupation. This amnesty shall not apply
to crimes against chastity or to acts committed from
purely personal motives.
It is further proclaimed and declared that in order to
determine who among those against whom charges
have been filed before the courts of the Philippines
or against whom charges may be filed in the future,
come within the terms of this amnesty, Guerrilla
Amnesty Commissions, simultaneously to be
established , shall examine the facts and
circumstance surrounding each case and, if
necessary, conduct summary hearings of witnesses
both for the complainant and the accused. These
Commissions shall decided each case and, upon
finding that it falls within the terms of this
proclamation, the Commissions shall so declare and
this amnesty shall immediately be effective as to the
accused, who shall forthwith be released or
discharged.
The theory of the respondents, supported by the dissenting
opinion, is predicated on a wrong conception of the nature or
character of an amnesty. Amnesty must be distinguished from
pardon.
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person
pardoned, because the courts take no notice thereof; while
amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the
courts should take judicial notice. Pardon is granted to one
after conviction; while amnesty is granted to classes of persons
or communities who may be guilty of political offenses,
generally before or after the institution of the criminal
prosecution and sometimes after conviction. Pardon looks
forward and relieves the offender from the consequences of an
offense of which he has been convicted, that is, it abolished or
forgives the punishment, and for that reason it does ""nor work
the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms
of the pardon," and it "in no case exempts the culprit from the
FINALS CONSTITUTION I ACJUCO 180
payment of the civil indemnity imposed upon him by the
sentence" article 36, Revised Penal Code). while amnesty
looks backward and abolishes and puts into oblivion the
offense itself, it so overlooks and obliterates the offense with
which he is charged that the person released by amnesty
stands before the law precisely as though he had committed
no offense. (section 10[6], Article VII, Philippine Constitution;
State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C.,
118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State
ex rel Anheuser—Busch Brewing Ass'n. vs. Eby, 170 Mo., 497;
71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct., 267;
271; 236 U.S., 79; 59 Law. ed., 476.)
In view of the foregoing, we are of the opinion and so hold that,
in order to entitle a person to the benefits of the Amnesty
Proclamation of September 7, 1946, it is not necessary that he
should, as a condition precedent or sine qua non, admit having
committed the criminal act or offense with which he is charged
and allege the amnesty as a defense; it is sufficient that the
evidence either of the complainant or the accused, shows that
the offense committed comes within the terms of said Amnesty
Proclamation. Hence, it is not correct to say that "invocation of
the benefits of amnesty is in the nature of a plea of confession
and avoidance." Although the accused does not confess the
imputation against him, he may be declared by the courts or
the Amnesty Commissions entitled to the benefits. For,
whether or not he admits or confesses having committed the
offense with which he is charged, the Commissions should, if
necessary or requested by the interested party, conduct
summary hearing of the witnesses both for the complainants
and the accused, on whether he has committed the offense in
furtherance of the resistance to the enemy, or against persons
aiding in the war efforts of the enemy, and decide whether he
is entitled to the benefits of amnesty and to be "regarded as a
patriot or hero who have rendered invaluable services to the
nation,," or not, in accordance with the terms of the Amnesty
Proclamation. since the Amnesty Proclamation is a public act,
the courts as well as the Amnesty Commissions created
thereby should take notice of the terms of said Proclamation
and apply the benefits granted therein to cases coming within
their province or jurisdiction, whether pleaded or claimed by
the person charged with such offenses or not, if the evidence
presented show that the accused is entitled to said benefits.
The right to the benefits of amnesty, once established by the
evidence presented either by the complainant or prosecution,
or by the defense, can not be waived, because it is of public
interest that a person who is regarded by the Amnesty
Proclamation which has the force of a law, not only as
innocent, for he stands in the eyes of the law as if he had never
committed any punishable offense because of the amnesty,
but as a patriot or hero, can not be punishment as a criminal.
Just as the courts of justice can not convict a person who,
according to the evidence, has committed an act not
punishable by law, although he confesses being guilty thereof,
so also and a fortiori they can not convict a person considered
by law not a criminal, but as a patriot and hero, for having
rendered invaluable services to the nation inn committing such
an act.
While it is true that the evidence must show that the offense
charged was against chastity and was committed in
furtherance of the resistance against the enemy, for otherwise,
it is to be naturally presumed that is has been committed for
purely personal motive, it is nonetheless true that though the
motive as a mental impulse is state of mind or subjective, it
need not be testified to be the defendant himself at his
arraignment or hearing of the case. Generally the motive for
the commission of an offense is established by the testimony
of witnesses on the acts or statements of the accused before
or immediately after the commission of the offense, deeds or
words hat may express it or from which his motive or reason
for committing it may be inferred. The statement of testimony
of a defendant at the time of arraignment or the hearing of the
case about said motive, can not generally be considered and
relied on, specially if there is evidence to the contrary, as the
true expression of the reason o motive he had at the time of
committing the offense. Because such statements or testimony
may be an afterthought or colored by the interest he may have
to suit his defense or the purpose for which he intends to
achieve with such declaration. Hence it does not stand to
reason and logic to say, as the dissenting opinion avers, that
unless the defendant admits at the investigation or hearing
having committed the offense with which he is charged, and
states that he did it in furtherance of the resistance to the
enemy, and not for purely personal motive, it is impossible for
the court of Commission to verify the motive for the
commission of the offense, because only the accused could
explain of the offense, because only the accused could explain
his belief and intention or the motive of committing the offense.
There is no necessity for an accused to admit his responsibility
for the commission of a criminal act before a court of Amnesty
Commission may investigate and extend or not to him the
benefits of amnesty. The fact that he pleads not guilty or that
he has not committed the act with which he is charged, does
not necessarily prove that he is not guilty thereof.
Notwithstanding his denial, the evidence for the prosecution or
complainant may show the contrary, as it is generally the case
in criminal proceedings, and what should in such a case be
determined is whether or not the offense committed is of
political character. The plea of not having committed the
offense made by an accused simply means that he can not be
convicted of the offense charged because he is not guilty
thereof, and, even if the evidence would show that he is,
because he has committed it in furtherance of the resistance
to the enemy or against persons a ding in the war efforts of the
enemy, and not for purely political motives.
According to Administrative Order No. 11 of October 2, 1946,
creating the Amnesty Commissions, issued by the President of
the Philippines, cases pending in the Courts of First Instance
of the province in which the accused claims the benefits of
Amnesty Proclamation, and cases already decided by said
courts but not yet elevated on appeal to the appellate courts,
shall be passed upon and decided by the respective Amnesty
Commission, and cases pending appeal shall be passed upon
by the Seventh Amnesty Commission. Under the theory of the
respondents and the writer oft he dissenting opinion, the
Commissions should refuse to comply with the directive of said
Administrative Order, because is almost all cases pending in
the Court of First Instance, and all those pending appeal form
the sentence of said courts, the defendants must not have
pleaded guilty or admitted having committed the offense
charged for otherwise, they would not or could not have
appealed from the judgment of the Courts of First Instance. To
hold that a Amnesty Commission should not proceed to the
investigation and act and decide whether the offense with
which an accused was charged comes within the Amnesty
Proclamation if he does not admit or confess having committed
it would be to defeat the purpose for which the Amnesty
Proclamation was issued and the Amnesty Commission were
established. If the courts have to proceed to the trail or hearing
of a case and decide whether the offense committed by the
defendant comes within the terms of the Amnesty
Proclamation although the defendant has plead not guilty,
there is no reason why the Amnesty Commissions can not do
so. Where a defendant to admit or confess having committed
the offense or being responsible therefor before he can invoke
the benefit of amnesty, as there is no law which makes such
admission or confession not admissible as evidence against
him in the courts of justices in case the Amnesty Commission
finds that the offense does not come within the terms of the
Amnesty Proclamation, nobody or few would take the risk of
submitting their case to said Commission.
FINALS CONSTITUTION I ACJUCO 181

Besides, in the present case, the allegation of Loreto

Barrioquinto that the offended party or victim was shot and
killed by Agapito Hipolito , does not necessarily bar the
respondents from finding, after the summary hearing of the
witnesses for the complaints and the accused, directed in the
said Amnesty Proclamation and Administrative Order No. 11,
that the petitioners are responsible for the killing of the victim,
either as principals by cooperation, inducement or
conspiration, or as accessories before as well as after the fact,
but that they are entitled to the benefits of amnesty, because
they were members of the same group of guerrilleros who
killed the victim in furtherance of the resistance to the enemy
or against persons aiding in the war efforts of the enemy.

Wherefore, the respondents are hereby ordered to

immediately proceed to hear and decide the application for
amnesty of petitioners Barrioquinto and Jimenez, unless
amnesty of petitioners Barrioquinto and Jimenez, unless the
courts have in the meantime already decided, expressly and
finally, the question whether or not they are entitled to the
benefits of the Amnesty Proclamation No. 8 of September 7,
1946. So ordered.
FINALS CONSTITUTION I ACJUCO 182
G.R. No. L-18184 January 31, 1963
GAUDENCIO VERA, RESTITUTO FIGUERAS, LORENZO
AMBAS, JUSTO FLORIDO, PAULINO BAYRAN AND
JAYME GARCIA, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF
APPEALS, respondents.
De Mesa & De Mesa for petitioners.
Office of the Solicitor General for respondents.
BARRERA, J.:
In the Court of First Instance of Quezon, petitioners Gaudencio
Vera, Restituto Figueras, Lorenzo Ambas, Justo Florido,
Paulino Bayran, and 92 others, as John Does, were charged
with the complex crime of kidnapping with murder of Amadeo
Lozanes, alias Azarcon. Upon petitioners' motion, invoking the
benefits of Amnesty Proclamation of the President, series of
1946, the case was referred to the Eighth Guerrilla Amnesty
Commission, which actually tried it.
During the hearing, none of the petitioner-defendants admitted
having committed the crime charged. In fact, Gaudencio Vera,
the only defendant who took the witness stand, instead of
admitting the killing of the deceased Lozanes categorically
denied it. Hence, the Commission, in its decision of January
12, 1956, held that it could not take cognizance of the case, on
the ground that the benefits of the Amnesty Proclamation,
could be invoked only by defendants in a criminal case who,
admitting the commission of the crime, plead that said
commission was in pursuance of the resistance movement and
perpetrated against persons who aided the enemy during the
Japanese occupation. Consequently, the Commission ordered
that the case be remanded to the court of origin for trial. A
motion for reconsideration filed by petitioners was denied by
the Commission in its order dated January 11, 1957, which
partly reads:
The Commission is convinced that the motive for the
kidnapping and killing of Lt. Amadeo Lozanes of the
Hunters was the keen rivalry between the Vera's
Guerrilla Party and the Hunter's ROTC Guerrilla
organizations. It is noteworthy that the Hunters were
driven away by General Vera from Pitogo in
December, 1944, and that after said kidnapping and
killing on February 13 and 14, 1945, Mayor Ramon
Isaac of Unisan, was in turn kidnapped by the
Hunters. Leopoldo Miciano, secretary of Col. de Luna
of the Vera's Guerrilla Party, testified that General
Vera told him of his (Vera's) suspicion that Mayor
Isaac was kidnapped by way of reprisal as he, Vera,
had ordered the liquidation of Lt. Lozanes
(dinispatcha).
In any event, since it is an established fact that when
Lozanes was kidnapped, tortured, and later killed, he
was actually a lieutenant of the Hunter's ROTC
Guerrilla Organizations then engaged in the
resistance movement, it may not be said with any
amount of truth that the aforesaid killing was to
further the resistance movement at the time, as the
defense intimate. Rather, the killing of Lt. Lozanes of
the Hunters ROTC Guerrilla would tend to weaken
commensurately the resistance movement against
the Japanese invaders.
The Commission noted, however, that nowhere in
the evidence of record has it been shown that
defendant Jaime Garcia had any participation in the
complex crime charged. Neither does the evidence
reveal that he admitted or disclaimed any role
therein. Consequently, there would be no room,
either for his conviction, or for the application of the
provisions of the aforementioned amnesty
proclamation.
FOR ALL THE FOREGOING CONSIDERATIONS,
this Eighth Guerrilla Amnesty Commission denies the
defendants motion for reconsideration and maintains
its order contained in its decisions, to return the case
to the Court of First Instance of Quezon for the latter
to act on it accordingly, not only because of lack of
jurisdiction, but also because, even if it has
jurisdiction, the defendants are not entitled to the
benefits of the amnesty proclamation.
From this order of the Commission, petitioners appealed to the
Court of Appeals. The latter, on July 27, 1959, certified the
appeal to us, in view of the legal issue involved, namely,
whether or not persons invoking the benefit of amnesty should
first admit having committed the crime of which they were
accused. On August 13, 1959 we ordered the docketing of the
appeal in this court (G.R. No. L-15803). However, on
petitioners' motion to return the record of the case to the Court
of Appeals (on the ground that the appeal was originally
coursed to said Court, due to "factual issues to the effect that
the death of Amado Lozanes did not spring from personal
motive or on account of rivalry between guerrilla units, but
owing to the fact that said decedent had aided in the war efforts
of the enemy, by having been a member of the Jap-sponsored
Philippine Constabulary organization, and by having been one
of those who arrested and subsequently massacred, innocent
civilians and guerrillas in Catanauan, Quezon"), we ordered
the return of said record to said Court.
On November 16, 1960, the Court of Appeals rendered a
decision, affirming the Order of the Commission, stating in part,
as follows:
Appellants stressed in their aforementioned motion
for reconsideration that they had impliedly admitted
their participation in the killing of Amadeo Lozanes.
But mere implied admission is not sufficient, for
Administrative Order No. 144 of the Department of
Justice, dated October 11, 1950, amending
Administrative Order No. 179 thereof, and issued on
November 17, 1949, explicitly directs that "where the
offense charged against any person is not one
against chastity but is covered by the Revised Penal
Code, and the offense took place between December
8, 1941 and the date of the liberation of the province
or city where the offense is alleged to have been
committed, "in order that the Amnesty Commission
may take cognizance of the case, the accused or
respondent must allege or claim verbally or in writing
that he committed the acts charged against him in
furtherance of the resistance movement or against
persons who aided in the war efforts of the enemy',
for amnesty presupposes the commission of a
crime".
xxx xxx xxx
Therefore, and since appellants did not claim verbally
or in writing that they committed the offense with
which they were charged in furtherance of the
resistance movement or against persons who aided
in the war efforts of the enemy, but on the contrary,
as already stated, herein appellants had verbally
FINALS CONSTITUTION I ACJUCO 183
denied the charge against them, their case should be
tried by the ordinary courts of justice. Hence, the 8th
Guerrilla Amnesty Commission could not take
cognizance of their case.
Wherefore, the parties respectfully pray that the
foregoing stipulation of facts be admitted and
approved by this Honorable Court, without prejudice
to the parties adducing other evidence to prove their
case not covered by this stipulation of
facts. 1äwphï1.ñët
Appellants, however, want us to rule one way or the
other, as to the factual question that the death of
Amadeo Lozanes did not spring from personal
motive or on account of rivalry of guerrilla units but
owing to the fact that the said decedent had aided in
the war efforts of the enemy. Without shirking from
our duty to make a finding or pronouncement on a
question of fact, we are constrained not to make a
pronouncement on this question, in view of our ruling
stated earlier that the Commission is not competent
to take cognizance of this case, for the reasons
already stated, but it should be the ordinary courts of
justice. Any ruling that we would make now on the
factual issue postulated by appellants would not only
be premature and prejudicial, but also useless,
because this case proceeded from a body (the
Commission) that has no jurisdiction to entertain the
same. It may be stated, in this connection, that
jurisdiction could be raised at any stage of the
proceedings.
WHEREFORE, the decision and order appealed
from are hereby affirmed.
IT IS SO ORDERED.
Their motion for reconsideration of said decision having been
denied, petitioners instituted the present petition for review.
Petitioners contend (as they did in the Court of Appeals), that
to be entitled to the benefits of Amnesty Proclamation No. 8,
dated September 7, 1946, it is not necessary for them to admit
the commission of the crime charged, citing in support of their
submission the cases of Barrioquinto, et al. vs. Fernandez, et
al. (L-1278, January 21, 1949, 82 Phil. 642), Provincial Fiscal
of Ilocos Norte v. De los Santos, et al. (L-2502, December 1,
1949, 85 Phil. 77) and Viray v. Amnesty Commission, et al. (L-
2540, January 28, 1960, 85 Phil. 354), to the effect that "in
order to entitle a person to the benefits of Amnesty
Proclamation (No. 8) of September 7, 1946, it is not necessary
that he should, as a condition precedent or sine qua non, admit
having committed the criminal act or offense with which he is
charged, and allege the amnesty as a defense; it is sufficient
that the evidence, either of the complainant or the accused,
shows that the offense committed comes within the terms of
said Amnesty Proclamation."
But said cases have been superseded and deemed overruled
by the subsequent cases of People v. Llanita, et al.(L-2082,
April 26, 1950, 86 Phil. 219) and People v. Guillermo, et al. (L-
2188, May 18, 1950, 86 Phil. 395), wherein we held that —
It is rank inconsistency for appellant to justify an act,
or seek forgiveness for an act which, according to
him, he has not committed. Amnesty presupposes
the commission of a crime, and when an accused
maintains that he has not committed a crime, he
cannot have any use for amnesty. Where an amnesty
proclamation imposes certain conditions, as in this
case, it is incumbent upon the accused to prove the
existence of such conditions. The invocation of
amnesty is in the nature of a plea of confession and
avoidance, which means that the pleader admits the
allegations against him but disclaims liability therefor
on account of intervening facts which, if proved,
would being the crime charged uithin the scope of the
amnesty proclamation. (Emphasis supplied)
At any rate, the facts established before the Commission do
not bring this case within the terms of Amnesty Proclamation
No. 8. Note that said proclamation extends its provisions to "all
persons who committed any act penalized under the Revised
Penal Code in furtherance of the resistance to the enemy or
against persons aiding in the war effort of the enemy." As found
by the Commission, the killing of the deceased (Lozañes) was
not in furtherance of the resistance movement, but was due to
the rivalry between the Hunter's Guerrilla, to which he
belonged, and the Vera's Guerrilla of petitioners.
Neither may petitioners rely on the case of Buyco v. People, et
al. (L-6327, July 29, 1954) because in said case, we held that
petitioner was not entitled to the benefits of the Amnesty
Proclamation not only because "the evidence did not suffice to
show that appellant had acted in the manner contemplated in
the amnesty proclamation," namely, that he killed the
deceased Luis Gonzales due to his being an enemy
collaborator, but also because if petitioner's version was true
that he had no participation whatsoever in the killing of the
deceased, then he "had committed no crime whatsoever, and,
hence, there would be no room, either for his conviction or for
the application of the provisions of the aforementioned
amnesty application," which, in effect, reiterates our previous
ruling in the Llanitaand Guillermo cases, supra, that amnesty
cannot be invoked, where the accused actually denies the
commission of the offense charged.
We find no merit in petitioner's claim that the Court of Appeals
erred in applying or citing Department of Justice Administrative
Order No. 144, series of 1950,1 considering that the latter was
issued precisely pursuant to our ruling in the
aforesaid Llanita and Guillermo cases.
Petitioners also argue that the Court of Appeals erred in
declining to resolve the factual issues they had raised before
it. The argument is untenable, because as the appellate court
correctly pointed out, any ruling that it would make on the
factual issues presented by petitioners "would not only be
premature and prejudicial, but also useless, because this case
proceeded from a body (the Commission) that had no
jurisdiction to entertain the same."
WHEREFORE, finding no error in the decision of the Court of
Appeals sought to be reviewed, the same is hereby affirmed,
with costs against the petitioners. So ordered.
FINALS CONSTITUTION I ACJUCO 184
G.R. No. 47941. December 7, 1940.]
MIGUEL CRISTOBAL, Petitioner, v. ALEJO LABRADOR,
ET AL., Respondents.
Victoriano Yamzon for Petitioner.
E. Voltaire Garcia for respondent Santos.
SYLLABUS
1. CONSTITUTIONAL LAW; PARDONING POWER OF
CHIEF EXECUTIVE. — Paragraph 6 of section 11 of Article VII
of our Constitution, provides:" (6) The President shall have the
power to grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction, for all offenses,
except in cases of impeachment, upon such conditions and
with such restrictions and limitations as he may deem proper
to impose. He shall have the power to grant amnesty with the
concurrence of the National Assembly." It should be observed
that there are two limitations upon the exercise of this
constitutional prerogative by the Chief Executive, namely: (a)
that the power be exercised after conviction; and (b) that such
power does not extend to cases of impeachment. Subject to
the limitations imposed by the Constitution, the pardoning
power cannot be restricted of controlled by legislative action. It
must remain where the sovereign authority has placed it and
must be exercised by the highest authority to whom it is
entrusted. An absolute pardon not only blots out the crime
committed, but removes all disabilities resulting from the
conviction.
2. ID.; ID.; CASE AT BAR. — In the present case, the disability
is the result of conviction without there would be no basis for
disqualification from voting. Imprisonment is not the only
punishment which the law imposes upon those who violate its
command. There are accessory and resultant disabilities, and
the pardoning power likewise extends to such disabilities.
When granted after the term of imprisonment has expired,
absolute pardon removes all that is left of the consequences of
conviction. In the present case, while the pardon extended to
respondent S is conditional in the sense that "he will be eligible
for appointment only to positions which are clerical or manual
in nature involving no money or property responsibility," it is
absolute in so far as it "restores the respondent to full civil and
political rights." (Pardon, Exhibit 1, extended December 24,
1939.) While there are cases in the United States which hold
that the pardoning power does not restore the privilege of
voting, this is because, as stated by the learned judge below,
in the United States the right of suffrage is a matter exclusively
in the hands of the State and not in the hands of the Federal
Government (decision, page 9). Even then, there are cases to
the contrary (Jones v. Board of registrars, 56 Miss, 766;
Hildreth v. Heath, 1 I11. App., 82). Upon the other hand, the
suggestion that the disqualification imposed in paragraph (b)
of section 94 of Commonwealth Act No. 357, does not fall
within the purview of the pardoning power of the Chief
Executive, would lead to the impairment of the pardoning
power of the Chief Executive, not contemplated in the
Constitution, and would lead furthermore to the result that there
would be no way of restoring the political privilege in a case of
this nature except through legislative action.
DECISION
LAUREL, J.:
This is a petition for a writ of certiorari to review the decision of
the Court of First Instance of Rizal in its election case No. 7890,
rendered on November 28, 1940, sustaining the right of Teofilo
C. Santos to remain in the list of registered voters in precinct
No. 11 of the municipality of Malabon, Province of Rizal.
The antecedents which form the factual background of this
election controversy are briefly narrated as follows:chanrob1es
virtual 1aw library
On March 15, 1930, the Court of First Instance of Rizal found
Teofilo C. Santos, respondent herein, guilty of the crime of
estafa and sentenced him to six months of arresto mayor and
the accessories provided by law, to return to the offended
parties, Toribio Alarcon and Emilio Raymundo, the amounts
P375 and P125, respectively, with subsidiary imprisonment in
case of insolvency, and to pay the costs. On appeal, this court,
on December 20, 1930, confirmed the judgment of conviction.
Accordingly, he was confined in the provincial jail of Pasig,
Rizal, from March 14, 1932 to August 18, 1932 and paid the
corresponding costs of trial. As to his civil liability consisting in
the return of the two amounts aforestated, the same was
condoned by the complainants. Notwithstanding his conviction,
Teofilo C. Santos continued to be a registered elector in the
municipality of Malabon, Rizal, and was, for the period
comprised between 1934 and 1937, seated as the municipal
president of that municipality. On August 22, 1938,
Commonwealth Act No. 357, otherwise known as the Election
Code, was approved by the National Assembly, section 94,
paragraph (b) of which disqualifies the respondent from voting
for having been "declared by final judgment guilty of any crime
against property." In view of this provision, the respondent
forthwith applied to His Excellency, the President, for an
absolute pardon, his petition bearing date of August 15, 1939.
Upon the favorable recommendation of the Secretary of
Justice, the Chief Executive, on December 24, 1939, granted
the said petition, restoring the respondent to his "full civil and
political rights, except that with respect to the right to hold
public office or employment, he will be eligible for appointment
only to positions which are clerical or manual in nature and
involving no money or property responsibility." virtua1aw
library
On November 16, 1940, the herein petitioner, Miguel Cristobal,
filed a petition for the exclusion of the name of Teofilo C.
Santos from the list of voters in precinct No. 11 of Malabon,
Rizal, on the ground that the latter is disqualified under
paragraph (b) of section 94 of Commonwealth Act No. 357.
After hearing, the court below rendered its decision on
November 28, 1940, the dispositive portion of which reads as
follows:jgc:chanrobles.com.ph
"Without going further into a discussion of all the other minor
points and questions raised by the petitioner, the court
declares that the pardon extended in favor of the respondent
on December 24, 1939, has had the effect of excluding the
respondent from the disqualification created by section 94,
subsection (b) of the New Election Code. The petition for
exclusion of the respondent Teofilo C. Santos should be, as it
hereby is, denied. Let there be no costs." virtua1aw library
Petitioner Cristobal has filed the present petition
for certiorari in which he impugns the decision of the court
below on the several grounds stated in the petition.
It is the contention of the petitioner that the pardon granted by
His Excellency, the President of the Philippines, to the
respondent, Teofilo C. Santos, did not restore the said
respondent to the full enjoyment of his political rights, because
(a) the pardoning power of the Chief Executive does not apply
to legislative prohibitions; (b) the pardoning power here would
amount to an unlawful exercise by the Chief Executive of a
legislative function; and (c) the respondent having served his
sentence and all the accessory penalties imposed by law, there
was nothing to pardon. All these propositions involve an inquiry
into the primary question of the nature and extent of the
pardoning power vested in the Chief Executive of the Nation
by the Constitution.
FINALS CONSTITUTION I ACJUCO 185

Paragraph 6 of section 11 of Article VII of our Constitution,

provides:jgc:chanrobles.com.ph

"(6) The President shall have the power to grant reprieves,

commutations, and pardons, and remit fines and forfeitures,
after conviction, for all offenses, except in cases of
impeachment, upon such conditions and with such restrictions
and limitations as he may deem pro to impose. He shall have
the power to grant amnesty with the concurrence of the
National Assembly." virtua1aw library

It should be observed that there are two limitations upon the

exercise of this constitutional prerogative by the Chief
Executive, namely: (a) that the power be exercised after
conviction; and (b) that such power does not extend cases of
impeachment. Subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or
controlled by legislative action. It must remain where the
sovereign authority has placed it and must be exercised by the
highest authority to whom it is entrusted. An absolute pardon
not only blots out the crime committed, but removes all
disabilities resulting from the conviction. In the present case,
the disability is the result of conviction without which there
would be no basis for disqualification from voting.
Imprisonment is not the only punishment which the law
imposes upon those who violate its command. There are
accessory and resultant disabilities, and the pardoning power
likewise extends to such disabilities. When granted after the
term of imprisonment has expired, absolute pardon removes
all that is left of the consequences f conviction. In the present
case, while the pardon extended to respondent Santos is
conditional in the sense that "he will be eligible for appointment
only to positions which a e clerical or manual in nature involving
no money or property responsibility," it is absolute insofar as it
"restores the respondent to full civil and political rights."
(Pardon, Exhibit 1, extended December 24, 1939.) While there
are cases in the United States which hold that the pardoning
power does not restore the privilege of voting, this is because,
as stated by the learned judge below, in the United States the
right of suffrage is a matter exclusively in the hands of the State
and not in the hands of the Federal Government (Decision,
page 9). Even then, there are cases to the contrary (Jones v.
Board of Registrars, 56 Miss. 766; Hildreth v. Heath, 1 Ill. App.
82). Upon other hand, the suggestion that the disqualification
imposed in paragraph (b) of section 94 of Commonwealth Act
No. 357, does not fall within the purview of the pardoning
power of the Chief Executive, would lead to the impairment of
the pardoning power of the Chief Executive, not contemplated
in the Constitution, and would lead furthermore to the result
that there would be no way of restoring the political privilege in
a case of this nature except through legislative action.
FINALS CONSTITUTION I ACJUCO 186
April 7, 1922
In Re MARCELINO LONTOK
Ramon Diokno for respondent.
Attorney-General Villa-Real for the Government.
MALCOLM, J.:
The Attorney-General asks that an order issue for the removal
of Marcelino Lontok from his office of lawyer in the Philippine
Islands, because of having been convicted of the crime of
bigamy. The respondent lawyer, in answer, prays that the
charges be dismissed, and bases his plea principally on a
pardon issued to him by former Governor-General Harrison.
Marcelino Lontok was convicted by the Court of First Instance
of Zambales of the crime of bigamy. This judgement was
affirmed on appeal to the Supreme Court, while a further
attempt to get the case before the United States Supreme
Court was unsuccessful. On February 9, 1921, a pardon was
issued by the Governor-General of the following tenor:
By virtue of the authority conferred upon me by the
Philippine Organic Act on August 29, 1916, the
sentence in the case of Marcelino Lontok convicted
by the Court of First Instance of Zambales of bigamy
and sentenced on February 27, 1918, to
imprisonment for eight years, to suffer the accessory
penalties prescribed by law, and to pay the costs of
the proceedings, which sentence was, on September
8, 1919, confirmed by the Supreme Court is hereby
remitted, on condition that he shall not again be guilty
of any misconduct.
The particular provision of the Code of Civil Procedure, upon
which the Attorney-General relies in asking for the disbarment
of Attorney Lontok, provides that a member of the bar may be
removed or suspended form his office of lawyer by the
Supreme Court "by reason of his conviction of a crime involving
moral turpitude." (Sec. 21) That conviction of the crime of
bigamy involves moral turpitude, within the meaning of the law,
cannot be doubted. The debatable question relates to the
effect of the pardon by the Governor-General. On the one
hand, it is contended by the Government that while the pardon
removes the legal infamy of the crime, it cannot wash out the
moral stain; on the other hand, it is contended by the
respondent that the pardon reaches the offense for which he
was convicted and blots it out so that he may not be looked
upon as guilty of it.
The cases are not altogether clear as to just what effect a
pardon has on the right of a court of disbar an attorney for
conviction of a felony. On close examination, however, it will
be found that the apparent conflict in the decisions is more
apparent than real, and arises from differences in the nature of
the charges on which the proceedings to disbar are based.
Where preceedings to strike an attorney's name from the rolls
are founded on, and depend alone, on a statute making the
fact of a conviction for a felony ground for disbarment, it has
been held that a pardon operates to wipe out the conviction
and is a bar to any proceeding for the disbarment of the
attorney after the pardon has been granted. (In re Emmons
[1915], 29 Cal. App., 121; Scott vs. State [1894], 6 Tex. Civ.
App., 343). But where proceedings to disbar an attorney are
founded on the professional misconduct involved in a
transaction which has culminated in a conviction of felony, it
has been held that while the effect of the pardon is to relieve
him of the penal consequences of his act, it does not operate
as a bar to the disbarment proceedings, inasmuch as the
criminal acts may nevertheless constitute proof that the
attorney does not possess a good moral character and is not a
fit or proper person to retain his license to practice law. (People
vs. Burton [1907], 39 Colo., 164; People vs. George [1900],186
Ill., 122; Nelson vs. Com. [1908],128 Ky., 779; Case of In re —
——— [1881],86 N.Y., 563.)
The celebrated case of Ex parte Garland [1866], 4 Wall., 380,
is directly in point. The petitioner in this case applied for a
license to practice law in the United States courts, without first
taking an oath to the effect that he had never voluntarily given
aid to any government hostile to the United States, as required
by statute. The petitioner, it seems, had been a member of the
Conferate Congress, during the secession of the South, but
had been pardons by the President of the United States. It was
held, buy a divided court, that to exclude the petitioner from the
practice of law for the offense named would be to enforce a
punishment for the offense, notwithstanding the pardon which
the court had no right to do; and the opinion of the court, in
part, said:
A pardon reaches both the punishment prescribed for
the offense and the guilt of the offender; and when
the pardon is full, it releases the punishment and
blots out of existence the guilt, so that in the eye of
the law the offender is an innocent as if he had never
committed the offense. If granted before conviction,
it prevents any of the penalties and disabilities,
consequent upon conviction, from attaching; if
granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it
makes him, as it were, a new man, and gives him a
new credit and capacity.
There is only this limitation to its operation; it does
not restore offices forfeited, or property or interest
vested in others in consequence of the conviction
and judgement.
Although much which is contained in the opinion of the four
dissenting justices, in the Garland case, appeals powerfully to
the minds of the court, we feel ourselves under obligation to
follow the rule laid down by the majority decision of the higher
court. We do this with the more grace when we recall that
according to the article 130 of the Penal Code, one of the
different ways by which criminal liability is extinguished is by
pardon. We must also remember that the motion for
disbarment is based solely on the judgement of conviction for
a crime of which the respondent has been pardoned, We must
also remember that the motion for disbarment is based solely
on the judgment of conviction for crime of which the respondent
has been pardoned, and that the language of the pardon is not
such as to amount to a conditional pardon similar in nature to
a parole. It may be mentioned however, in this connection, that
if Marcelino Lontok should again be guilty of any misconduct,
the condition of his pardon would be violated, and he would
then become subject to disbarment.
It results, therefore, that the petition of the Attorney-General
cannot be granted, and that the proceedings must be
dismissed. Costs shall be taxed as provided by section 24 of
the Code of Civil Procedure. So ordered.
FINALS CONSTITUTION I ACJUCO 187
G.R. No. 76872 July 23, 1987
WILFREDO TORRES Y SUMULONG, petitioner,
vs.
HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD
OF PARDONS AND PAROLE, and THE DIRECTOR,
BUREAU OF PRISONS, respondents.
FELICIANO, J.:
This is an original petition for habeas corpus filed on behalf of
petitioner Wilfredo S. Torres, presently confined at the National
Penitentiary in Muntinlupa. We issued the writ and during the
hearing and from the return filed by the respondents through
the Solicitor General, and other pleadings in this case, the
following facts emerged:
1. Sometime before 1979 (no more specific date
appears in the records before this Court), petitioner
was convicted by the Court of First Instance of Manila
of the crime of estafa (two counts) and was
sentenced to an aggregate prison term of from
eleven (11) years, ten (10) months and twenty-two
(22) days to thirty-eight (38) years, nine (9) months
and one (1) day, and to pay an indemnity of
P127,728.75 (Criminal Cases Nos. 68810, 91041
and F-138107). These convictions were affirmed by
the Court of Appeals (CA-G.R. Nos. 14773-CR and
17694-CR). The maximum sentence would expire on
2 November 2000.1
2. On 18 April 1979, a conditional pardon was
granted to the petitioner by the President of the
Philippines on condition that petitioner would "not
again violate any of the penal laws of the Philippines.
Should this condition be violated, he will be
proceeded against in the manner prescribed by
law."2 Petitioner accepted the conditional pardon and
was consequently released from confinement.
3. On 21 May 1986, the Board of Pardons and Parole
(the "Board") resolved to recommend to the
President the cancellation of the conditional pardon
granted to the petitioner. In making its
recommendation to the President, the Board relied
upon the decisions of this Court in Tesoro vs.
Director of Prisons (68 Phil. 154 [1939])
and Espuelas vs. Provincial Warden of Bohol (108
Phil. 356 [1960]). The evidence before the Board
showed that on 22 March 1982 and 24 June 1982,
petitioner had been charged with twenty counts of
estafa in Criminal Cases Nos. Q-19672 and Q-
20756, which cases were then (on 21 May 1986)
pending trial before the Regional Trial Court of Rizal
(Quezon City). The record before the Board also
showed that on 26 June 1985, petitioner had been
convicted by the Regional Trial Court of Rizal
(Quezon City) of the crime of sedition in Criminal
Case No. Q-22926; this conviction was then pending
appeal before the Intermediate Appellate Court. The
Board also had before it a letter report dated 14
January 1986 from the National Bureau of
Investigation ("NBI"), addressed to the Board, on the
petitioner. Per this letter, the records of the NBI
showed that a long list of charges had been brought
against the petitioner during the last twenty years for
a wide assortment of crimes including estafa, other
forms of swindling, grave threats, grave coercion,
illegal possession of firearms, ammunition and
explosives, malicious mischief, violation of Batas
Pambansa Blg. 22, and violation of Presidential
Decree No. 772 (interfering with police functions).
Some of these charges were Identified in the NBI
report as having been dismissed. The NBI report did
not purport to be a status report on each of the
charges there listed and Identified.
4. On 4 June 1986, the respondent Minister of Justice
wrote to the President of the Philippines informing
her of the Resolution of the Board recommending
cancellation of the conditional pardon previously
granted to petitioner.
5. On 8 September 1986, the President cancelled the
conditional pardon of the petitioner.
6. On 10 October 1986, the respondent Minister of
Justice issued "by authority of the President" an
Order of Arrest and Recommitment against
petitioner. The petitioner was accordingly arrested
and confined in Muntinlupa to serve the unexpired
portion of his sentence.
Petitioner now impugns the validity of the Order of Arrest and
Recommitment. He claims that he did not violate his
conditional pardon since he has not been convicted by final
judgment of the twenty (20) counts of estafa charged in
Criminal Cases Nos. Q-19672 and Q-20756 nor of the crime of
sedition in Criminal Case No. Q-22926.3 Petitioner also
contends that he was not given an opportunity to be heard
before he was arrested and recommitted to prison, and
accordingly claims he has been deprived of his rights under the
due process clause of the Constitution.
The issue that confronts us therefore is whether or not
conviction of a crime by final judgment of a court is necessary
before the petitioner can be validly rearrested and recommitted
for violation of the terms of his conditional pardon and
accordingly to serve the balance of his original sentence.
This issue is not novel. It has been raised before this Court
three times in the past. This Court was first faced with this issue
in Tesoro Director of Prison.4 Tesoro, who had been convicted
of the crime of falsification of public documents, was granted a
parole by the then Governor-General. One of the conditions of
the parole required the parolee "not [to] commit any other crime
and [to] conduct himself in an orderly manner." 5 Two years
after the grant of parole, Tesoro was charged before the
Justice of the Peace Court of San Juan, Rizal, with the crime
of adultery said to have been committed with the wife of
Tesoro's brother-in-law. The fiscal filed with the Court of First
Instance the corresponding information which, however, was
dismissed for non-appearance of the complainant. The
complainant then went before the Board of Indeterminate
Sentence and charged Tesoro with violation of the conditions
of his parole. After investigation by the parole officer, and on
the basis of his report, the Board recommended to the
President of the Philippines the arrest and recommitment of the
petitioner. Tesoro contended, among other things, that a
"judicial pronouncement to the effect that he has committed a
crime" is necessary before he could properly be adjudged as
having violated his conditional parole.
Addressing this point, this Court, speaking through then Mr.
Justice Moran, held that the determination of whether the
conditions of Tesoro's parole had been breached rested
exclusively in the sound judgment of the Governor-General
and that such determination would not be reviewed by the
courts. As Tesoro had consented to place his liberty on parole
upon the judgment of the power that had granted it, we held
that "he [could not] invoke the aid of the courts, however
erroneous the findings may be upon which his recommitment
FINALS CONSTITUTION I ACJUCO 188
was ordered."6 Thus, this Court held that by accepting the
terms under which the parole had been granted, Tesoro had in
effect agreed that the Governor-General's determination
(rather than that of the regular courts of law) that he had
breached one of the conditions of his parole by committing
adultery while he was conditionally at liberty, was binding and
conclusive upon him. In reaching this conclusion, this Court
relied upon Section 64 (i) of the Revised Administrative Code
which empowered the Governor-General
to grant to convicted prisoners reprieves or pardons,
either plenary or partial, conditional or unconditional;
to suspend sentences without parole, remit fines, and
order the discharge of any convicted person upon
parole, subject to such conditions as he may impose;
and to authorize the arrest and recommitment of any
such person who, in his judgment, shall fail to comply
with the condition or conditions, of his pardon,
parole or suspension of sentence. (Emphasis
supplied)
In Sales vs. Director of Prisons,7 the petitioner had been
convicted of the crime of frustrated murder. After serving a little
more than two years of his sentence, he was given a
conditional pardon by the President of the Philippines, "the
condition being that he shall not again violate any of the penal
laws of the Philippines and that, should this condition be
violated, he shall be proceeded against in the manner
prescribed by law."8 Eight years after the grant of his
conditional pardon, Sales was convicted of estafa and
sentenced to three months and eleven days of arresto mayor.
He was thereupon recommitted to prison to serve the
unexpired portion of his original sentence. Sales raised before
this Court two principal contentions. Firstly, he argued that
Section 64 (i) of the Revised Administrative Code had been
repealed by Article 159 of the Revised Penal Code. He
contended, secondly, that Section 64 (i) was in any case
repugnant to the due process clause of the Constitution (Article
III [1], 1935 Constitution). This Court, through Mr. Justice
Ozaeta speaking for the majority, rejected both contentions of
Sales.
Sales held, firstly, that Article 159 of the Revised Penal Code
did not repeal Section 64 (i) Revised Administrative Code. It
was pointed out that Act No. 4103, the Indeterminate Sentence
Law, which was enacted subsequent to the Revised Penal
Code, expressly preserved the authority conferred upon the
President by Section 64. The Court also held that Article 159
and Section 64 (i) could stand together and that the proceeding
under one provision did not necessarily preclude action under
the other. Sales held, secondly, that Section 64 (i) was not
repugnant to the constitutional guarantee of due process. This
Court in effect held that since the petitioner was a convict "who
had already been seized in a constitutional was been
confronted by his accusers and the witnesses against him-,
been convicted of crime and been sentenced to punishment
therefor," he was not constitutionally entitled to another judicial
determination of whether he had breached the condition of his
parole by committing a subsequent offense. Thus:
[a] statute [like Section 64 (i)] supervenes to avoid
the necessity for any action by the courts in the
premises. The executive clemency under it is
extended upon the conditions named in it, and he
accepts it upon those conditions. One of these is that
the governor may withdraw his grace in a certain
contingency, and another is that the governor shall
himself determine when that contingency has
arisen. It is as if the convict, with full competency to
bind himself in the premises, had expressly
contracted and agreed, that, whenever the governor
should conclude that he had violated the conditions
of his parole, an executive order for his arrest and
remandment to prison should at once issue, and be
conclusive upon him. 9
In Espuelas vs. Provincial Warden of Bohol,10 the petitioner
had been convicted of the crime of inciting to sedition. While
serving his sentence, he was granted by the President a
conditional pardon "on condition that he shall not again violate
any of the penal laws of the Philippines."11 Espuelas accepted
the conditional pardon and was released from confinement.
Sometime thereafter, he was convicted by the Justice of the
Peace Court in Tagbilaran, Bohol, of the crime of usurpation of
authority. He appealed to the Court of First Instance. Upon
motion of the provincial fiscal, the Court of First Instance
dismissed the case provisionally, an important prosecution
witness not having been available on the day set for trial. A few
months later, upon recommendation of the Board of Pardons
and Parole, the President ordered his recommitment to prison
to serve the unexpired period of his original sentence.
The Court in Espuelas reaffirmed the continuing force and
effect of Section 64 (i) of the Revised Administrative Code. This
Court, quoting Tesoro and Sales, ruled that:
Due process is not necessarily judicial The appellee
had had his day in court and been afforded the
opportunity to defend himself during his trial for the
crime of inciting to sedition, with which he was
charged, that brought about or resulted in his
conviction, sentence and confinement in the
penitentiary. When he was conditionally pardoned it
was a generous exercise by the Chief Executive of
his constitutional prerogative. The acceptance
thereof by the convict or prisoner carrie[d] with it the
authority or power of the Executive to determine
whether a condition or conditions of the pardon has
or have been violated. To no other department of the
Government [has] such power been intrusted. 12
The status of our case law on the matter under consideration
may be summed up in the following propositions:
1. The grant of pardon and the determination of the
terms and conditions of a conditional pardon are
purely executive acts which are not subject to judicial
scrutiny.
2. The determination of the occurrence of a breach
of a condition of a pardon, and the proper
consequences of such breach, may be either a
purely executive act, not subject to judicial scrutiny
under Section 64 (i) of the Revised Administrative
Code; or it may be a judicial act consisting of trial for
and conviction of violation of a conditional pardon
under Article 159 of the Revised Penal Code. Where
the President opts to proceed under Section 64 (i) of
the Revised Administrative Code, no judicial
pronouncement of guilt of a subsequent crime is
necessary, much less conviction therefor by final
judgment of a court, in order that a convict may be
recommended for the violation of his conditional
pardon.
3. Because due process is not semper et
unique judicial process, and because the
conditionally pardoned convict had already been
accorded judicial due process in his trial and
conviction for the offense for which he was
conditionally pardoned, Section 64 (i) of the Revised
Administrative Code is not afflicted with a
constitutional vice.
FINALS CONSTITUTION I ACJUCO 189

We do not believe we should depart from the clear and well

understood rules and doctrine on this matter.

It may be emphasized that what is involved in the instant case

is not the prosecution of the parolee for a subsequent
offense in the regular course of administration of the criminal
law. What is involved is rather the ascertainment of whether
the convict has breached his undertaking that he would "not
again violate any of the penal laws of the Philippines" for
purposes of reimposition upon him of the remitted portion of
his original sentence. The consequences that we here deal
with are the consequences of an ascertained breach of the
conditions of a pardon. A convict granted conditional pardon,
like the petitioner herein, who is recommitted must of course
be convicted by final judgment of a court of the subsequent
crime or crimes with which he was charged before the criminal
penalty for such subsequent offense(s) can be imposed upon
him. Again, since Article 159 of the Revised Penal Code
defines a distinct, substantive, felony, the parolee or convict
who is regarded as having violated the provisions thereof must
be charged, prosecuted and convicted by final judgment before
he can be made to suffer the penalty prescribed in Article
159.1avvphi1

Succinctly put, in proceeding against a convict who has been

conditionally pardoned and who is alleged to have breached
the conditions of his pardon, the Executive Department has two
options: (i) to proceed against him under Section 64 (i) of the
Revised Administrative Code; or (ii) to proceed against him
under Article 159 of the Revised Penal Code which imposes
the penalty of prision correccional, minimum period, upon a
convict who "having been granted conditional pardon by the
Chief Executive, shall violate any of the conditions of such
pardon." Here, the President has chosen to proceed against
the petitioner under Section 64 (i) of the Revised Administrative
Code. That choice is an exercise of the President's executive
prerogative and is not subject to judicial scrutiny.

WHEREFORE, this Petition is hereby DISMISSED. No

pronouncement as to costs.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 190
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition
with prayer for issuance of a temporary restraining order
seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the
Philippine National Police (the PNP) in visibility patrols around
the metropolis.
In view of the alarming increase in violent crimes in Metro
Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the
Marines to conduct joint visibility patrols for the purpose of
crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the
Philippines (the AFP), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute
and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of
Instruction 02/2000[1] (the LOI) which detailed the manner by
which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task
Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila.
Subsequently, the President confirmed his previous
directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the
AFP and the PNP Chief.[3] In the Memorandum, the President
expressed his desire to improve the peace and order situation
in Metro Manila through a more effective crime prevention
program including increased police patrols.[4] The President
further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary. [5] Invoking his
powers as Commander-in-Chief under Section 18, Article VII
of the Constitution, the President directed the AFP Chief of
Staff and PNP Chief to coordinate with each other for the
proper deployment and utilization of the Marines to assist the
PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of
the Marines in the anti-crime campaign are merely temporary
in nature and for a reasonable period only, until such time when
the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine
Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the
PNP NCRPO and the Philippine Marines partnership in the
conduct of visibility patrols in Metro Manila for the suppression
of crime prevention and other serious threats to national
security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not
only by ordinary criminals but also by organized syndicates
whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove
well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine
Marines in the conduct of police visibility patrol in urban areas
will reduce the incidence of crimes specially those perpetrated
by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to
conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street patrolling
to minimize or eradicate all forms of high-profile crimes
especially those perpetrated by organized crime syndicates
whose members include those that are well-trained, disciplined
and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the
NCRPO [National Capital Regional Police Office] and the
Philippine Marines to curb criminality in Metro Manila and to
preserve the internal security of the state against insurgents
and other serious threat to national security, although the
primary responsibility over Internal Security Operations still
rests upon the AFP.
b. The principle of integration of efforts shall be applied to
eradicate all forms of high-profile crimes perpetrated by
organized crime syndicates operating in Metro Manila. This
concept requires the military and police to work cohesively and
unify efforts to ensure a focused, effective and holistic
approach in addressing crime prevention. Along this line, the
role of the military and police aside from neutralizing crime
syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is
achieved. Hand-in-hand with this joint NCRPO-Philippine
Marines visibility patrols, local Police Units are responsible for
the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a
provisional Task Force TULUNGAN shall be organized to
provide the mechanism, structure, and procedures for the
integrated planning, coordinating, monitoring and assessing
the security situation.
xxx.[8]
The selected areas of deployment under the LOI are:
Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the
Philippines (the IBP) filed the instant petition to annul LOI
02/2000 and to declare the deployment of the Philippine
Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN
METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN
THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO
MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY,
THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
FINALS CONSTITUTION I ACJUCO 191
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION
OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS
TENDENCY TO RELY ON THE MILITARY TO PERFORM
THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA,
THE ADMINISTRATION IS UNWITTINGLY MAKING THE
MILITARY MORE POWERFUL THAN WHAT IT SHOULD
REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino
lawyers tasked with the bounden duty to uphold the rule of law
and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in
law enforcement.
Without granting due course to the petition, the Court in
a Resolution,[11] dated 25 January 2000, required the Solicitor
General to file his Comment on the petition. On 8 February
2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the
constitutionality of the act of the President in deploying the
Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines
is not proper for judicial scrutiny since the same involves a
political question; that the organization and conduct of police
visibility patrols, which feature the team-up of one police officer
and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether
or not petitioner has legal standing; (2) Whether or not the
Presidents factual determination of the necessity of calling the
armed forces is subject to judicial review; and, (3) Whether or
not the calling of the armed forces to assist the PNP in joint
visibility patrols violates the constitutional provisions on civilian
supremacy over the military and the civilian character of the
PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in
possession of the requisites of standing to raise the issues in
the petition. Second, the President did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction nor did
he commit a violation of the civilian supremacy clause of the
Constitution.
The power of judicial review is set forth in Section 1,
Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised,
the Court can exercise its power of judicial review only if the
following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is
the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites
of standing in this case.
Legal standing or locus standi has been defined as a
personal and substantial interest in the case such that the party
has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. [13] The term interest
means a material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the question
involved, or a mere incidental interest.[14] The gist of the
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult
constitutional questions.[15]
In the case at bar, the IBP primarily anchors its standing
on its alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The mere
invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe
it with standing in this case. This is too general an interest
which is shared by other groups and the whole citizenry. Based
on the standards above-stated, the IBP has failed to present a
specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of
the Rules of Court, is to elevate the standards of the law
profession and to improve the administration of justice is alien
to, and cannot be affected by the deployment of the Marines. It
should also be noted that the interest of the National President
of the IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action. To
be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP,
assuming that it has duly authorized the National President to
file the petition, has not shown any specific injury which it has
suffered or may suffer by virtue of the questioned
governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a
result of the operation of the joint visibility patrols. Neither is it
alleged that any of its members has been arrested or that their
civil liberties have been violated by the deployment of the
Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten
Philippine democratic institutions and may cause more harm
than good in the long run. Not only is the presumed injury not
personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned
act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to
raise constitutional issues now or in the future. The IBP must,
by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that
this Court has the discretion to take cognizance of a suit which
does not satisfy the requirement of legal standing when
paramount interest is involved.[16] In not a few cases, the Court
has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental
significance to the people.[17] Thus, when the issues raised are
FINALS CONSTITUTION I ACJUCO 192
of paramount importance to the public, the Court may brush
aside technicalities of procedure.[18] In this case, a reading of
the petition shows that the IBP has advanced constitutional
issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents.Moreover,
because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore, behooves
the Court to relax the rules on standing and to resolve the issue
now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the
factual determination of the President of the necessity of calling
the armed forces, particularly the Marines, to aid the PNP in
visibility patrols. In this regard, the IBP admits that the
deployment of the military personnel falls under the
Commander-in-Chief powers of the President as stated in
Section 18, Article VII of the Constitution, specifically, the
power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines
under the aforestated provision. According to the IBP, no
emergency exists that would justify the need for the calling of
the military to assist the police force. It contends that no
lawless violence, invasion or rebellion exist to warrant the
calling of the Marines. Thus, the IBP prays that this Court
review the sufficiency of the factual basis for said troop
[Marine] deployment.[19]
The Solicitor General, on the other hand, contends that
the issue pertaining to the necessity of calling the armed forces
is not proper for judicial scrutiny since it involves a political
question and the resolution of factual issues which are beyond
the review powers of this Court.
As framed by the parties, the underlying issues are the
scope of presidential powers and limits, and the extent of
judicial review. But, while this Court gives considerable weight
to the parties formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes
beyond the narrow confines of the issues raised. Thus, while
the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court
is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general
welfare.[20] For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or
anarchy. Secondly, the full brunt of the military is not brought
upon the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the
Presidents powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times
of emergency, but is also tasked with attending to the day-to-
day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on
the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow
cannot be said to exclude the Presidents exercising as
Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power
involved is the Presidents power to call out the armed forces
to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the
issue involved is not susceptible to review by the judiciary
because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it
refers to a matter which is appropriate for court review. [22] It
pertains to issues which are inherently susceptible of being
decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are
ripe for resolution. One class of cases wherein the Court
hesitates to rule on are political questions. The reason is that
political questions are concerned with issues dependent upon
the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch
unless the case shows a clear need for the courts to step in to
uphold the law and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to
those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the
legislative or executive branch of government. Thus, if an issue
is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to
the people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in Baker
v. Carr,[24] [p]rominent on the surface of any case held to
involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly
for nonjudicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarassment
from multifarious pronouncements by various departments on
the one question.
The 1987 Constitution expands the concept of judicial
review by providing that (T)he Judicial power shall be vested
in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree
with the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to review. When
the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is
justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court. [27] When political
FINALS CONSTITUTION I ACJUCO 193
questions are involved, the Constitution limits the
determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of the official whose action is being questioned. [28]
By grave abuse of discretion is meant simply capricious
or whimsical exercise of judgment that is patent and gross as
to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility. [29] Under this
definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But
while this Court has no power to substitute its judgment for that
of Congress or of the President, it may look into the question
of whether such exercise has been made in grave abuse of
discretion.[30] A showing that plenary power is granted either
department of government, may not be an obstacle to judicial
inquiry, for the improvident exercise or abuse thereof may give
rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or
suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in
his wisdom.This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the Presidents wisdom or substitute its
own.However, this does not prevent an examination of whether
such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting
grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon
the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge
such heavy burden as there is no evidence to support the
assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the
power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful
hesitation[32] before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain.
There is a clear textual commitment under the
Constitution to bestow on the President full discretionary power
to call out the armed forces and to determine the necessity for
the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus, or place the Philippines or any part
thereof under martial law.
xxx
The full discretionary power of the President to determine
the factual basis for the exercise of the calling out power is also
implied and further reinforced in the rest of Section 18, Article
VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege
of the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in
or directly connected with invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke
such proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no
such equivalent provision dealing with the revocation or review
of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category
from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus, otherwise,
the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain
matters, it may not, by interpretation or construction, be
extended to other matters.[33] That the intent of the Constitution
is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of
the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that
there is a graduated power of the President as Commander-in-
Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can suspend
the privilege of the writ of habeas corpus, then he can impose
martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or
suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be
reviewed by anybody.
xxx
FINALS CONSTITUTION I ACJUCO 194
FR. BERNAS. Let me just add that when we only have
imminent danger, the matter can be handled by the first
sentence: The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. So
we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that
there is imminent danger, the matter can be handled by the
First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or
rebellion. So we feel that that is sufficient for handling imminent
danger, of invasion or rebellion, instead of imposing martial law
or suspending the writ of habeas corpus, he must necessarily
have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by
the legislature nor is it subject to judicial review. [34]
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using
the power to call out because it is considered as the lesser and
more benign power compared to the power to suspend the
privilege of the writ of habeas corpus and the power to impose
martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and
review by this Court.
Moreover, under Section 18, Article VII of the
Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it.
These conditions are not required in the case of the power to
call out the armed forces. The only criterion is that whenever it
becomes necessary, the President may call the armed forces
to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared
to the two other powers.
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis, then
this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be
objectively established since matters considered for satisfying
the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual
standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to
the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical
proof.
On the other hand, the President as Commander-in-
Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power
to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out
the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at
all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem
could spill over the other parts of the country. The
determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining order
every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest
upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the
petitioner can show that the exercise of such discretion was
gravely abused, the Presidents exercise of judgment deserves
to be accorded respect from this Court.
The President has already determined the necessity and
factual basis for calling the armed forces. In his Memorandum,
he categorically asserted that, [V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to
occur in Metro Manila...[35] We do not doubt the veracity of the
Presidents assessment of the situation, especially in the light
of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the
shopping malls, public utilities, and other public places. These
are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President
has sufficient factual basis to call for military aid in law
enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the
civilian supremacy clause nor does it infringe the civilian
character of the police force.
Prescinding from its argument that no emergency
situation exists to justify the calling of the Marines, the IBP
asserts that by the deployment of the Marines, the civilian task
of law enforcement is militarized in violation of Section 3,
Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes permissible use
of military assets for civilian law enforcement. The participation
of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the
Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the
ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police
Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols.[37] Under the LOI, the police forces are tasked
to brief or orient the soldiers on police patrol procedures. [38] It
is their responsibility to direct and manage the deployment of
the Marines.[39] It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical
support to these soldiers.[40] In view of the foregoing, it cannot
be properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the
police force. Neither does it amount to an insidious incursion of
the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo
Reyes, Chief of Staff of the AFP, by his alleged involvement in
civilian law enforcement, has been virtually appointed to a
civilian post in derogation of the aforecited provision. The real
authority in these operations, as stated in the LOI, is lodged
with the head of a civilian institution, the PNP, and not with the
military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or
FINALS CONSTITUTION I ACJUCO 195
control over the same.Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be
no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines
render nothing more than assistance required in conducting
the patrols. As such, there can be no insidious incursion of the
military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian
authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the
implementation and execution of certain traditionally civil
functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been
rendered, exemplifying the activities that bring both the civilian
and the military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red
Cross;[43]
3. Relief and rescue operations during calamities
and disasters;[44]
4. Amateur sports promotion and development; [45]
5. Development of the culture and the arts; [46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform
program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement
activities;[50]
10. Conduct of licensure examinations; [51]
11. Conduct of nationwide tests for elementary and
high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work; [55]
15. Administration of the Civil Aeronautics
Board;[56]
16. Assistance in installation of weather forecasting
devices;[57]
17. Peace and order policy formulation in local
government units.[58]
This unquestionably constitutes a gloss on executive
power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and, yet,
never before questioned.[59] What we have here is mutual
support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion
and hostility towards the use of military force for domestic
purposes has persisted,[60] and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use
of military personnel by civilian law enforcement officers is
allowed under circumstances similar to those surrounding the
present deployment of the Philippine Marines. Under
the Posse Comitatus Act[61] of the US, the use of the military in
civilian law enforcement is generally prohibited, except in
certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses
any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both. [62]
To determine whether there is a violation of the Posse
Comitatus Act in the use of military personnel, the US
courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law
enforcement officers at Wounded Knee in such a manner that
the military personnel subjected the citizens to the exercise of
military power which was regulatory, proscriptive, or
compulsory[64] George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for
assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH:
PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS
WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152,
1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal
context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the
part of those claiming relief. A mere threat of some future injury
would be insufficient.(emphasis supplied)
Even if the Court were to apply the above rigid standards
to the present case to determine whether there is permissible
use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in
the Constitution is committed. On this point, the Court agrees
with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not
constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos.
6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers,
second, also have no power to prohibit or condemn. In
No. 9(d)[69] of Annex A, all arrested persons are brought
to the nearest police stations for proper disposition.And
last, these soldiers apply no coercive force. The
materials or equipment issued to them, as shown in No.
8(c)[70] of Annex A, are all low impact and defensive in
character. The conclusion is that there being no exercise
of regulatory, proscriptive or compulsory military power,
the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for
civilian law enforcement.[71]
It appears that the present petition is anchored on fear
that once the armed forces are deployed, the military will gain
ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that - calling out the
armed forces. Unless, petitioner IBP can show, which it has
not, that in the deployment of the Marines, the President has
violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not
FINALS CONSTITUTION I ACJUCO 196

inclined to overrule the Presidents determination of the factual

basis for the calling of the Marines to prevent or suppress
lawless violence.
One last point. Since the institution of the joint visibility
patrol in January, 2000, not a single citizen has complained
that his political or civil rights have been violated as a result of
the deployment of the Marines. It was precisely to safeguard
peace, tranquility and the civil liberties of the people that the
joint visibility patrol was conceived. Freedom and democracy
will be in full bloom only when people feel secure in their homes
and in the streets, not when the shadows of violence and
anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is
hereby DISMISSED.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 197
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and
PARTIDO NG MANGGAGAWA, represented by REP.
RENATO MAGTUBO petitioners, vs. EXECUTIVE
SECRETARY SECRETARY ANGELO REYES, GENERAL
NARCISO ABAYA, DIR. GEN. HERMOGENES
EBDANE, respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS
namely, SAMSON S. ALCANTARA, ED VINCENT S.
ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and
RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE
SECRETARY ALBERTO G. ROMULO, HON. SECRETARY
OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY
OF NATIONAL DEFENSE ANGELO REYES, and HON.
SECRETARY JOSE LINA, JR., respondents.
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA,
REP. CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP.
ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-
SANTOS, and REP. GEORGILU R. YUMUL-
HERMIDA, petitioners, vs. PRESIDENT GLORIA
MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY
ALBERTO G. ROMULO, respondents.
[G.R. No. 159196. February 3, 2004]
AQUILINO Q. PIMENTEL, JR. as a Member of the
Senate, petitioner, vs. SECRETARY ALBERTO ROMULO,
AS EXECUTIVE SECRETARY; SECRETARY ANGELO
REYES, AS SECRETARY OF NATIONAL DEFENSE;
GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE
ARMED FORCES; SECRETARY JOSE LINA, et
al., respondents.
DECISION
TINGA, J.:
They came in the middle of the night. Armed with high-
powered ammunitions and explosives, some three hundred
junior officers and enlisted men of the Armed Forces of the
Philippines (AFP) stormed into the Oakwood Premiere
apartments in Makati City in the wee hours of July 27,
2003. Bewailing the corruption in the AFP, the soldiers
demanded, among other things, the resignation of the
President, the Secretary of Defense and the Chief of the
Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President
issued later in the day Proclamation No. 427 and General
Order No. 4, both declaring a state of rebellion and calling out
the Armed Forces to suppress the rebellion. Proclamation No.
427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the
Philippines, armed with high-powered firearms and explosives,
acting upon the instigation and command and direction of
known and unknown leaders, have seized a building in Makati
City, put bombs in the area, publicly declared withdrawal of
support for, and took arms against the duly constituted
Government, and continue to rise publicly and show open
hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the
Philippines and the Philippine National Police, and depriving
the President of the Republic of the Philippines, wholly or
partially, of her powers and prerogatives which constitute the
crime of rebellion punishable under Article 134 of the Revised
Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of
the Philippines are being supported, abetted and aided by
known and unknown leaders, conspirators and plotters in the
government service and outside the government;
WHEREAS, under Section 18, Article VII of the present
Constitution, whenever it becomes necessary, the President,
as the Commander-in-Chief of the Armed Forces of the
Philippines, may call out such Armed Forces to suppress the
rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me by law, hereby confirm the
existence of an actual and on-going rebellion, compelling me
to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in
accordance with Section 18, Article VII of the Constitution,
calling out the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the
necessary actions and measures to suppress and quell the
rebellion with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES
AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS
REBELLION
WHEREAS, certain elements of the Armed Forces of the
Philippines, armed with high-powered firearms and explosives,
acting upon the instigation and command and direction of
known and unknown leaders, have seized a building in Makati
City, put bombs in the area, publicly declared withdrawal of
support for, and took arms against the duly constituted
Government, and continue to rise publicly and show open
hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the
Philippines and the Philippine National Police, and depriving
the President of the Republic of the Philippines, wholly or
partially, of her powers and prerogatives which constitute the
crime of rebellion punishable under Article 134 et seq. of the
Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of
the Philippines are being supported, abetted and aided by
known and unknown leaders, conspirators and plotters in the
government service and outside the government;
WHEREAS, under Section 18, Article VII of the present
Constitution, whenever it becomes necessary, the President,
as the Commander-in-Chief of all Armed Forces of the
Philippines, may call out such Armed Forces to suppress the
rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me by the Constitution as
President of the Republic of the Philippines and Commander-
in-Chief of all the armed forces of the Philippines and pursuant
to Proclamation No. 427 dated July 27, 2003, do hereby call
upon the Armed Forces of the Philippines and the Philippine
National Police to suppress and quell the rebellion.
FINALS CONSTITUTION I ACJUCO 198
I hereby direct the Chief of the Armed Forces of the Philippines
and the Chief of the Philippine National Police and the officers
and men of the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the
necessary and appropriate actions and measures to suppress
and quell the rebellion with due regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood
occupation had ended. After hours-long negotiations, the
soldiers agreed to return to barracks. The President, however,
did not immediately lift the declaration of a state of rebellion
and did so only on August 1, 2003, through Proclamation No.
435:
DECLARING THAT THE STATE OF REBELLION HAS
CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27,
2003, a state of rebellion was declared;
WHEREAS, by virtue of General Order No. 4 dated July 27,
2003, which was issued on the basis of Proclamation No. 427
dated July 27, 2003, and pursuant to Article VII, Section 18 of
the Constitution, the Armed Forces of the Philippines and the
Philippine National Police were directed to suppress and quell
the rebellion;
WHEREAS, the Armed Forces of the Philippines and the
Philippine National Police have effectively suppressed and
quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,
President of the Philippines, by virtue of the powers vested in
me by law, hereby declare that the state of rebellion has
ceased to exist.
In the interim, several petitions were filed before this
Court challenging the validity of Proclamation No. 427 and
General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive
Secretary, et al.),[2] party-list organizations Sanlakas and
Partido ng Manggagawa (PM), contend that Section 18, Article
VII of the Constitution does not require the declaration of a
state of rebellion to call out the armed forces. [3] They further
submit that, because of the cessation of the Oakwood
occupation, there exists no sufficient factual basis for the
proclamation by the President of a state of rebellion for an
indefinite period.[4]
Petitioners in G.R. No. 159103 (SJS Officers/Members v.
Hon. Executive Secretary, et al.) are officers/members of the
Social Justice Society (SJS), Filipino citizens, taxpayers, law
professors and bar reviewers.[5] Like Sanlakas and PM, they
claim that Section 18, Article VII of the Constitution does not
authorize the declaration of a state of rebellion. [6] They contend
that the declaration is a constitutional anomaly that confuses,
confounds and misleads because [o]verzealous public officers,
acting pursuant to such proclamation or general order, are
liable to violate the constitutional right of private
citizens.[7] Petitioners also submit that the proclamation is a
circumvention of the report requirement under the same
Section 18, Article VII, commanding the President to submit a
report to Congress within 48 hours from the proclamation of
martial law.[8] Finally, they contend that the presidential
issuances cannot be construed as an exercise of emergency
powers as Congress has not delegated any such power to the
President.[9]
In G.R. No. 159185 (Rep. Suplico et al. v. President
Macapagal-Arroyo and Executive Secretary Romulo),
petitioners brought suit as citizens and as Members of the
House of Representatives whose rights, powers and functions
were allegedly affected by the declaration of a state of
rebellion.[10] Petitioners do not challenge the power of the
President to call out the Armed Forces.[11] They argue,
however, that the declaration of a state of rebellion is a
superfluity, and is actually an exercise of emergency
powers.[12] Such exercise, it is contended, amounts to a
usurpation of the power of Congress granted by Section 23 (2),
Article VI of the Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.),
petitioner Senator assails the subject presidential issuances as
an unwarranted, illegal and abusive exercise of a martial law
power that has no basis under the Constitution. [14] In the main,
petitioner fears that the declaration of a state of rebellion opens
the door to the unconstitutional implementation of warrantless
arrests for the crime of rebellion.[15]
Required to comment, the Solicitor General argues that
the petitions have been rendered moot by the lifting of the
declaration.[16] In addition, the Solicitor General questions the
standing of the petitioners to bring suit. [17]
The Court agrees with the Solicitor General that the
issuance of Proclamation No. 435, declaring that the state of
rebellion has ceased to exist, has rendered the case moot. As
a rule, courts do not adjudicate moot cases, judicial power
being limited to the determination
of actual controversies.[18] Nevertheless, courts will decide a
question, otherwise moot, if it is capable of repetition yet
evading review.[19] The case at bar is one such case.
Once before, the President on May 1, 2001 declared a
state of rebellion and called upon the AFP and the PNP to
suppress the rebellion through Proclamation No. 38 and
General Order No. 1. On that occasion, an angry and violent
mob armed with explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons assaulted and attempted to
break into Malacaang.[20] Petitions were filed before this Court
assailing the validity of the Presidents declaration. Five days
after such declaration, however, the President lifted the
same. The mootness of the petitions in Lacson v. Perez and
accompanying cases[21] precluded this Court from addressing
the constitutionality of the declaration.
To prevent similar questions from reemerging, we seize
this opportunity to finally lay to rest the validity of the
declaration of a state of rebellion in the exercise of the
Presidents calling out power, the mootness of the petitions
notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel,
as Members of Congress, have standing to challenge the
subject issuances. In Philippine Constitution Association v.
Enriquez, [22]this Court recognized that:
To the extent the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right
to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to the
courts.
Petitioner Members of Congress claim that the declaration of a
state of rebellion by the President is tantamount to an exercise
of Congress emergency powers, thus impairing the lawmakers
legislative powers. Petitioners also maintain that the
declaration is a subterfuge to avoid congressional scrutiny into
the Presidents exercise of martial law powers.
FINALS CONSTITUTION I ACJUCO 199
Petitioners Sanlakas and PM, and SJS
Officers/Members, have no legal standing or locus standi to
bring suit. Legal standing or locus standi has been defined as
a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult
constitutional questions.[23]
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important
plank in their programs, petitioners are committed to assert,
defend, protect, uphold, and promote the rights, interests, and
welfare of the people, especially the poor and marginalized
classes and sectors of Philippine society. Petitioners are
committed to defend and assert human rights, including
political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass
actions and mobilizations in the exercise of their Constitutional
rights to peaceably assemble and their freedom of speech and
of expression under Section 4, Article III of the 1987
Constitution, as a vehicle to publicly ventilate their grievances
and legitimate demands and to mobilize public opinion to
support the same.[24] [Emphasis in the original.]
Petitioner party-list organizations claim no better right
than the Laban ng Demokratikong Pilipino, whose standing this
Court rejected in Lacson v. Perez:
petitioner has not demonstrated any injury to itself which would
justify the resort to the Court. Petitioner is a juridical person not
subject to arrest. Thus, it cannot claim to be threatened by a
warrantless arrest.Nor is it alleged that its leaders, members,
and supporters are being threatened with warrantless arrest
and detention for the crime of rebellion. Every action must be
brought in the name of the party whose legal rights has been
invaded or infringed, or whose legal right is under imminent
threat of invasion or infringement.
At best, the instant petition may be considered as an action for
declaratory relief, petitioner claiming that it[]s right to freedom
of expression and freedom of assembly is affected by the
declaration of a state of rebellion and that said proclamation is
invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief
affords little comfort to petitioner, this Court not having
jurisdiction in the first instance over such a petition. Section 5
[1], Article VIII of the Constitution limits the original jurisdiction
of the court to cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.[25]
Even assuming that petitioners are peoples
organizations, this status would not vest them with the requisite
personality to question the validity of the presidential
issuances, as this Court made clear in Kilosbayan v.
Morato: [26]
The Constitution provides that the State shall respect the role
of independent peoples organizations to enable the people to
pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through
peaceful and lawful means, that their right to effective and
reasonable participation at all levels of social, political, and
economic decision-making shall not be abridged. (Art. XIII, 15-
16)
These provisions have not changed the traditional rule that
only real parties in interest or those with standing, as the case
may be, may invoke the judicial power. The jurisdiction of this
Court, even in cases involving constitutional questions, is
limited by the case and controversy requirement of Art. VIII,
5. This requirement lies at the very heart of the judicial
function. It is what differentiates decisionmaking in the courts
from decisionmaking in the political departments of the
government and bars the bringing of suits by just any party. [27]
That petitioner SJS officers/members are taxpayers and
citizens does not necessarily endow them with standing. A
taxpayer may bring suit where the act complained of directly
involves the illegal disbursement of public funds derived from
taxation.[28] No such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a
constitutional question only when he can show that he has
personally suffered some actual or threatened injury as a result
of the allegedly illegal conduct of the government; the injury is
fairly traceable to the challenged action; and the injury is likely
to be redressed by a favorable action.[29] Again, no such injury
is alleged in this case.
Even granting these petitioners have standing on the
ground that the issues they raise are of transcendental
importance, the petitions must fail.
It is true that for the purpose of exercising the calling out
power the Constitution does not require the President to make
a declaration of a state of rebellion. Section 18, Article VII
provides:
Sec. 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the
writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public safety requires
it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis for the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ.
FINALS CONSTITUTION I ACJUCO 200
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in
or directly connected with invasion.
During the suspension of the privilege of the writ, any person
thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released. [Emphasis
supplied.]
The above provision grants the President, as
Commander-in-Chief, a sequence of graduated
power[s].[30] From the most to the least benign, these are: the
calling out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare martial law. In the
exercise of the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or
rebellion, and that public safety requires the exercise of such
power.[31] However, as we observed in Integrated Bar of the
Philippines v. Zamora,[32][t]hese conditions are not required in
the exercise of the calling out power. The only criterion is that
whenever it becomes necessary, the President may call the
armed forces to prevent or suppress lawless violence, invasion
or rebellion.
Nevertheless, it is equally true that Section 18, Article VII
does not expressly prohibit the President from declaring a
state of rebellion. Note that the Constitution vests the
President not only with Commander-in-Chief powers but, first
and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution
states: The executive power shall be vested in the President.
As if by exposition, Section 17 of the same Article provides: He
shall ensure that the laws be faithfully executed. The provisions
trace their history to the Constitution of the United States.
The specific provisions of the U.S. Constitution granting
the U.S. President executive and commander-in-chief powers
have remained in their original simple form since the
Philadelphia Constitution of 1776, Article II of which states in
part:
Section 1. 1. The Executive Power shall be vested in a
President of the United States of America . . . .
....
Section 2. 1. The President shall be Commander in Chief of
the Army and Navy of the United States. . . .
....
Section 3. he shall take care that the laws be faithfully
executed. [Article II Executive Power]
Recalling in historical vignettes the use by the U.S.
President of the above-quoted provisions, as juxtaposed
against the corresponding action of the U.S. Supreme Court,
is instructive. Clad with the prerogatives of the office and
endowed with sovereign powers, which are drawn chiefly from
the Executive Power and Commander-in-Chief provisions, as
well as the presidential oath of office, the President serves as
Chief of State or Chief of Government, Commander-in-Chief,
Chief of Foreign Relations and Chief of Public Opinion. [33]
First to find definitive new piers for the authority of the
Chief of State, as the protector of the people, was President
Andrew Jackson. Coming to office by virtue of a political
revolution, Jackson, as President not only kept faith with the
people by driving the patricians from power. Old Hickory, as he
was fondly called, was the first President to champion the
indissolubility of the Union by defeating South Carolinas
nullification effort.[34]
The Federal Tariff Acts of 1828 and 1832 that Congress
enacted did not pacify the hotspurs from South Carolina. Its
State Legislature ordered an election for a convention, whose
members quickly passed an Ordinance of Nullification. The
Ordinance declared the Tariff Acts unconstitutional, prohibited
South Carolina citizens from obeying them after a certain date
in 1833, and threatened secession if the Federal Government
sought to oppose the tariff laws. The Legislature then
implemented the Ordinance with bristling punitive laws aimed
at any who sought to pay or collect customs duties. [35]
Jackson bided his time. His task of enforcement would
not be easy. Technically, the President might send troops into
a State only if the Governor called for help to suppress an
insurrection, which would not occur in the instance. The
President could also send troops to see to it that the laws
enacted by Congress were faithfully executed. But these laws
were aimed at individual citizens, and provided no enforcement
machinery against violation by a State. Jackson prepared to
ask Congress for a force bill.[36]
In a letter to a friend, the President gave the essence of
his position. He wrote: . . . when a faction in a State attempts
to nullify a constitutional law of Congress, or to destroy the
Union, the balance of the people composing this Union have a
perfect right to coerce them to obedience. Then in a
Proclamation he issued on December 10, 1832, he called upon
South Carolinians to realize that there could be no peaceable
interference with the execution of the laws, and dared them,
disunion by armed force is treason. Are you ready to incur its
guilt? [37]
The Proclamation frightened nullifiers, non-nullifiers and
tight-rope walkers. Soon, State Legislatures began to adopt
resolutions of agreement, and the President announced that
the national voice from Maine on the north to Louisiana on the
south had declared nullification and accession confined to
contempt and infamy.[38]
No other President entered office faced with problems so
formidable, and enfeebled by personal and political handicaps
so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of
Congress explicit and restricted, and sought some source of
executive power not failed by misuse or wrecked by
sabotage. He seized upon the Presidents designation by the
Constitution as Commander-in-Chief, coupled it to the
executive power provision and joined them as the war power
which authorized him to do many things beyond the
competence of Congress.[39]
Lincoln embraced the Jackson concept of the Presidents
independent power and duty under his oath directly to
represent and protect the people. In his Message of July 4,
1861, Lincoln declared that the Executive found the duty of
employing the war power in defense of the government forced
upon him. He could not but perform the duty or surrender the
existence of the Government . . . . This concept began as a
transition device, to be validated by Congress when it
assembled. In less than two-years, it grew into an independent
power under which he felt authorized to suspend the privilege
of the writ of habeas corpus, issue the Emancipation
Proclamation, and restore reoccupied States. [40]
Lincolns Proclamation of April 15, 1861, called for 75,000
troops. Their first service, according to the proclamation, would
be to recapture forts, places and property, taking care to avoid
any devastation, any destruction of or interference with
property, or any disturbance of peaceful citizens. [41]
Early in 1863, the U.S. Supreme Court approved
President Lincolns report to use the war powers without the
FINALS CONSTITUTION I ACJUCO 201
benefit of Congress. The decision was handed in the
celebrated Prize Cases[42] which involved suits attacking the
Presidents right to legally institute a blockade. Although his
Proclamation was subsequently validated by Congress, the
claimants contended that under international law, a blockade
could be instituted only as a measure of war under the
sovereign power of the State. Since under the Constitution
only Congress is exclusively empowered to declare war, it is
only that body that could impose a blockade and all prizes
seized before the legislative declaration were illegal. By a 5 to
4 vote, the Supreme Court upheld Lincolns right to act as he
had.[43]
In the course of time, the U.S. Presidents power to call
out armed forces and suspend the privilege of the writ
of habeas corpus without prior legislative approval, in case of
invasion, insurrection, or rebellion came to be recognized and
accepted. The United States introduced the expanded
presidential powers in the Philippines through the Philippine
Bill of 1902.[44] The use of the power was put to judicial test and
this Court held that the case raised a political question and said
that it is beyond its province to inquire into the exercise of the
power.[45] Later, the grant of the power was incorporated in the
1935 Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the
presidency to mean that it made him the trustee of all the
people. Guided by the maxim that Public office is a public trust,
which he practiced during his incumbency, Cleveland sent
federal troops to Illinois to quell striking railway workers who
defied a court injunction. The injunction banned all picketing
and distribution of handbills. For leading the strikes and
violating the injunction, Debs, who was the union president,
was convicted of contempt of court. Brought to the Supreme
Court, the principal issue was by what authority of the
Constitution or statute had the President to send troops without
the request of the Governor of the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court
upheld the contempt conviction. It ruled that it is not the
governments province to mix in merely individual present
controversies. Still, so it went on, whenever wrongs
complained of are such as affect the public at large, and are in
respect of matters which by the Constitution are entrusted to
the care of the Nation and concerning which the Nation owes
the duty to all citizens of securing to them their common rights,
then the mere fact that the Government has no pecuniary
interest in the controversy is not sufficient to exclude it from the
Courts, or prevent it from taking measures therein to fully
discharge those constitutional duties. [49] Thus, Clevelands
course had the Courts attest.
Taking off from President Cleveland, President Theodore
Roosevelt launched what political scientists dub the
stewardship theory. Calling himself the steward of the people,
he felt that the executive power was limited only by the specific
restrictions and prohibitions appearing in the Constitution, or
impleaded by Congress under its constitutional powers.[50]
The most far-reaching extension of presidential power
T.R. ever undertook to employ was his plan to occupy and
operate Pennsylvanias coal mines under his authority as
Commander-in-Chief. In the issue, he found means other than
force to end the 1902 hard-coal strike, but he had made
detailed plans to use his power as Commander-in-Chief to
wrest the mines from the stubborn operators, so that coal
production would begin again.[51]
Eventually, the power of the State to intervene in and
even take over the operation of vital utilities in the public
interest was accepted. In the Philippines, this led to the
incorporation of Section 6,[52] Article XIII of the 1935
Constitution, which was later carried over with modifications in
Section 7,[53] Article XIV of the 1973 Constitution, and
thereafter in Section 18,[54] Article XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional
history is that the Commander-in-Chief powers are broad
enough as it is and become more so when taken together with
the provision on executive power and the presidential oath of
office. Thus, the plenitude of the powers of the presidency
equips the occupant with the means to address exigencies or
threats which undermine the very existence of government or
the integrity of the State.
In The Philippine Presidency A Study of Executive
Power, the late Mme. Justice Irene R. Cortes, proposed that
the Philippine President was vested with residual power and
that this is even greater than that of the U.S. President. She
attributed this distinction to the unitary and highly centralized
nature of the Philippine government. She noted that, There is
no counterpart of the several states of the American union
which have reserved powers under the United States
constitution. Elaborating on the constitutional basis for her
argument, she wrote:
. The [1935] Philippine [C]onstitution establishes the three
departments of the government in this manner: The legislative
power shall be vested in a Congress of the Philippines which
shall consist of a Senate and a House of Representatives. The
executive power shall be vested in a President of the
Philippines. The judicial powers shall be vested in one
Supreme Court and in such inferior courts as may be provided
by law. These provisions not only establish a separation of
powers by actual division but also confer plenary legislative,
executive, and judicial powers. For as the Supreme Court of
the Philippines pointed out in Ocampo v. Cabangis, a grant of
legislative power means a grant of all the legislative power; and
a grant of the judicial power means a grant of all the judicial
power which may be exercised under the government. If this is
true of the legislative power which is exercised by two
chambers with a combined membership [at that time] of more
than 120 and of the judicial power which is vested in a
hierarchy of courts, it can equally if not more appropriately
apply to the executive power which is vested in one official the
president. He personifies the executive branch. There is a
unity in the executive branch absent from the two other
branches of government. The president is not the chief of many
executives. He is the executive. His direction of the executive
branch can be more immediate and direct than the United
States president because he is given by express provision of
the constitution control over all executive departments,
bureaus and offices.[55]
The esteemed Justice conducted her study against the
backdrop of the 1935 Constitution, the framers of which, early
on, arrived at a general opinion in favor of a strong Executive
in the Philippines.[56] Since then, reeling from the aftermath of
martial law, our most recent Charter has restricted the
Presidents powers as Commander-in-Chief. The same,
however, cannot be said of the Presidents powers as Chief
Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes
put her thesis into jurisprudence. There, the Court, by a slim 8-
7 margin, upheld the Presidents power to forbid the return of
her exiled predecessor. The rationale for the majoritys ruling
rested on the Presidents
unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply
with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President,
FINALS CONSTITUTION I ACJUCO 202

particularly those relating to the commander-in-chief clause, rights. There is no indication that the President has exercised
but not a diminution of the general grant of executive judicial and legislative powers. In short, there is no illustration
power.[57] [Underscoring supplied. Italics in the original.] that the President has attempted to exercise or has exercised
martial law powers.
Thus, the Presidents authority to declare a state of Nor by any stretch of the imagination can the declaration
rebellion springs in the main from her powers as chief constitute an indirect exercise of emergency powers, which
executive and, at the same time, draws strength from her exercise depends upon a grant of Congress pursuant to
Commander-in-Chief powers. Indeed, as the Solicitor General Section 23 (2), Article VI of the Constitution:
accurately points out, statutory authority for such a declaration
may be found in Section 4, Chapter 2 (Ordinance Power), Book
III (Office of the President) of the Revised Administrative Code Sec. 23. (1) .
of 1987, which states:
(2) In times of war or other national emergency, the Congress
SEC. 4. Proclamations. Acts of the President fixing a date or may, by law, authorize the President, for a limited period and
declaring a status or condition of public moment or subject to such restrictions as it may prescribe, to exercise
interest, upon the existence of which the operation of a powers necessary and proper to carry out a declared national
specific law or regulation is made to depend, shall be policy. Unless sooner withdrawn by resolution of the Congress,
promulgated in proclamations which shall have the force of an such powers shall cease upon the next adjournment thereof.
executive order. [Emphasis supplied.]
The petitions do not cite a specific instance where the
The foregoing discussion notwithstanding, in calling out President has attempted to or has exercised powers beyond
the armed forces, a declaration of a state of rebellion is an utter her powers as Chief Executive or as Commander-in-Chief. The
superfluity.[58] At most, it only gives notice to the nation that President, in declaring a state of rebellion and in calling out the
such a state exists and that the armed forces may be called to armed forces, was merely exercising a wedding of her Chief
prevent or suppress it.[59] Perhaps the declaration may wreak Executive and Commander-in-Chief powers. These
emotional effects upon the perceived enemies of the State, are purely executive powers, vested on the President by
even on the entire nation. But this Courts mandate is to probe Sections 1 and 18, Article VII, as opposed to the delegated
only into the legal consequences of the declaration. This Court legislative powers contemplated by Section 23 (2), Article VI.
finds that such a declaration is devoid of any legal
WHEREFORE, the petitions are hereby DISMISSED.
significance. For all legal intents, the declaration is deemed not
SO ORDERED.
written.
Should there be any confusion generated by the
issuance of Proclamation No. 427 and General Order No. 4,
we clarify that, as the dissenters in Lacson correctly pointed
out, the mere declaration of a state of rebellion cannot diminish
or violate constitutionally protected rights. [60] Indeed, if a state
of martial law does not suspend the operation of the
Constitution or automatically suspend the privilege of the writ
of habeas corpus,[61] then it is with more reason that a simple
declaration of a state of rebellion could not bring about these
conditions.[62] At any rate, the presidential issuances
themselves call for the suppression of the rebellion with due
regard to constitutional rights.
For the same reasons, apprehensions that the military
and police authorities may resort to warrantless arrests are
likewise unfounded. In Lacson vs. Perez, supra, majority of the
Court held that [i]n quelling or suppressing the rebellion, the
authorities may only resort to warrantless arrests of persons
suspected of rebellion, as provided under Section 5, Rule 113
of the Rules of Court,[63] if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on
the declaration of a state of rebellion. [64] In other words, a
person may be subjected to a warrantless arrest for the crime
of rebellion whether or not the President has declared a state
of rebellion, so long as the requisites for a valid warrantless
arrest are present.

It is not disputed that the President has full discretionary

power to call out the armed forces and to determine the
necessity for the exercise of such power. While the Court may
examine whether the power was exercised within constitutional
limits or in a manner constituting grave abuse of discretion,
none of the petitioners here have, by way of proof, supported
their assertion that the President acted without factual basis.[65]
The argument that the declaration of a state of rebellion
amounts to a declaration of martial law and, therefore, is a
circumvention of the report requirement, is a leap of
logic. There is no indication that military tribunals have
replaced civil courts in the theater of war or that military
authorities have taken over the functions of civil government.
There is no allegation of curtailment of civil or political
FINALS CONSTITUTION I ACJUCO 203

G.R. No. L-35546 September 17, 1974 IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF AMANDO DORONILA JUAN L.
IN THE MATTER OF THE PETITION FOR MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA,
LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN
HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON
MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON CUSIPAG, ROBERTO ORDOÑEZ, MANUEL ALMARIO AND
RAMA, petitioners, WILLIE BAUN, petitioners,
vs. vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF
ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL STAFF, ARMED FORCES OF THE PHILIPPINES; AND
V. RAMOS, CHIEF, PHILIPPINE BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents. CONSTABULARY, respondents.

G.R. No. L-35538 September 17, 1974 G.R. No. L-35571 September 17, 1974. *3

IN THE MATTER OF THE PETITION FOR IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M. HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M.
LOCSIN, SR., ROLANDO FADUL, ROSALINA GALANG, GO GUIAO, petitioner,
ENG GUAN, MAXIMO V. SOLIVEN, RENATO vs.
CONSTANTINO, AND LUIS R. MAURICIO, petitioners, JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL
DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF STAFF
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF THE ARMED FORCES OF THE PHILIPPINES: AND
BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE
OF STAFF, ARMED FORCES OF THE PHILIPPINES; THE
CHIEF, PHILIPPINE CONSTABULARY, et al., respondents. CONSTABULARY, respondents.

G.R. No. L-35539 September 17, 1974 G.R. No. L-35573 September 17, 1974

IN THE MATTER OF THE PETITION FOR ERNESTO RONDON, petitioner,

HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I. vs.
DIOKNO, *1 petitioner, HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL CONSTABULARY; AND MAJOR RODULFO
MIANA, respondents.
DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES. respondents.

G.R. No. L-35540 September 17, 1974

MAKALINTAL, C.J.:p
MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE
MARI VELEZ, petitioners, These cases are all petitions for habeas corpus, the petitioners
vs. having been arrested and detained by the military by virtue of
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL the President's Proclamation No. 1081, dated September 21,
DEFENSE; HON. FRANCISCO TATAD, PRESS 1972.
SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF,
PHILIPPINE CONSTABULARY, respondents. At the outset a word of clarification is in order. This is not the
decision of the Court in the sense that a decision represents a
G.R. No. L-35547 September 17, 1974 *2 consensus of the required majority of its members not only on
the judgment itself but also on the rationalization of the issues
ENRIQUE VOLTAIRE GARCIA II, petitioner, and the conclusions arrived at. On the final result the vote is
practically unanimous; this is a statement of my individual
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE opinion as well as a summary of the voting on the major issues.
Why no particular Justice has been designated to write just one
CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES; AND opinion for the entire Court will presently be explained.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE, respondents. At one point during our deliberations on these cases it was
suggested that as Chief Justice I should write that opinion. The
G.R. No. L-35556 September 17, 1974 impracticability of the suggestion shortly became apparent for
a number of reasons, only two of which need be mentioned.
First, the discussions, as they began to touch on particular
IN THE MATTER OF THE PETITION FOR issues, revealed a lack of agreement among the Justices as to
HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN whether some of those issues should be taken up although it
CHIN HIAN, petitioners, was not necessary to do so, they being merely convenient for
vs. the purpose of ventilating vexing questions of public interest,
JUAN PONCE ENRILE, SECRETARY OF NATIONAL or whether the decision should be limited to those issues which
DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF are really material and decisive in these cases. Similarly, there
STAFF, ARMED FORCES OF THE PHILIPPINES; AND was no agreement as to the manner the issues should be
BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE treated and developed. The same destination would be
CONSTABULARY, respondents. reached, so to speak, but through different routes and by
means of different vehicles of approach. The writing of
G.R. No. L-35567 September 17, 1974 separate opinions by individual Justices was thus unavoidable,
and understandably so for still another reason, namely, that
FINALS CONSTITUTION I ACJUCO 204
although little overt reference to it was made at the time, the
future verdict of history was very much a factor in the thinking
of the members, no other case of such transcendental
significance to the life of the nation having before confronted
this Court. Second — and this to me was the insuperable
obstacle — I was and am of the opinion, which was shared by
six other Justices1 at the time the question was voted upon,
that petitioner Jose W. Diokno's motion of December 28, 1973
to withdraw his petition (G.R. No. L-35539) should be granted,
and therefore I was in no position to set down the ruling of the
Court on each of the arguments raised by him, except
indirectly, insofar as they had been raised likewise in the other
cases.
It should be explained at this point that when the Court voted
on Diokno's motion to withdraw his petition he was still under
detention without charges, and continued to remain so up to
the time the separate opinions of the individual Justices were
put in final form preparatory to their promulgation on
September 12, which was the last day of Justice Zaldivars
tenure in the Court.2 Before they could be promulgated,
however, a major development supervened: petitioner Diokno
was released by the President in the morning of September 11,
1974. In view thereof all the members of this Court except
Justice Castro agreed to dismiss Diokno's petition on the
ground that it had become moot, with those who originally
voted to grant the motion for withdrawal citing said motion as
an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr.
(G.R. No. L-35546), either have been permitted to withdraw
their petitions or have been released from detention subject to
certain restrictions.3 In the case of Aquino, formal charges of
murder, subversion and illegal possession of firearms were
lodged against him with a Military Commission on August 11,
1973; and on the following August 23 he challenged the
jurisdiction of said Commission as well as his continued
detention by virtue of those charges in a petition
for certiorari and prohibition filed in this Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's
petition for habeas corpus should be dismissed on the ground
that the case as to him should more appropriately be resolved
in this new petition. Of the twelve Justices, however, eight
voted against such dismissal and chose to consider the case
on the merits.4
On Diokno's motion to withdraw his petition I voted in favor of
granting it for two reasons. In the first place such withdrawal
would not emasculate the decisive and fundamental issues of
public interest that demanded to be resolved, for they were
also raised in the other cases which still remained pending.
Secondly, since it was this petitioner's personal liberty that was
at stake, I believed he had the right to renounce the application
for habeas corpus he initiated. Even if that right were not
absolute I still would respect his choice to remove the case
from this Court's cognizance, regardless of the fact that I
disagreed with many of his reasons for so doing. I could not
escape a sense of irony in this Court's turning down the plea
to withdraw on the ground, so he alleges among others, that
this is no longer the Court to which he originally applied for
relief because its members have taken new oaths of office
under the 1973 Constitution, and then ruling adversely to him
on the merits of his petition.
It is true that some of the statements in the motion are an
affront to the dignity of this Court and therefore should not be
allowed to pass unanswered. Any answer, however, would not
be foreclosed by allowing the withdrawal. For my part, since
most of those statements are of a subjective character, being
matters of personal belief and opinion, I see no point in refuting
them in these cases. Indeed my impression is that they were
beamed less at this Court than at the world outside and
designed to make political capital of his personal situation, as
the publicity given to them by some segments of the foreign
press and by local underground propaganda news sheets
subsequently confirmed. It was in fact from that perspective
that I deemed it proper to respond in kind, that is, from a non-
judicial forum, in an address I delivered on February 19, 1974
before the LAWASIA, the Philippine Bar Association and the
Philippine Lawyers' Association. Justice Teehankee, it may be
stated, is of the opinion that a simple majority of seven votes
out of twelve is legally sufficient to make the withdrawal of
Diokno's petition effective, on the theory that the requirement
of a majority of eight votes applies only to a decision on the
merits.
In any event, as it turned out, after petitioner Diokno was
released by the President on September 11 all the members
of this Court except Justice Castro were agreed that his petition
had become moot and therefore should no longer be
considered on the merits. This notwithstanding, some of the
opinions of the individual members, particularly Justices
Castro and Teehankee, should be taken in the time setting in
which they were prepared, that is, before the order for the
release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions
are related, either briefly or in great detail, in the separate
opinions filed by the individual Justices. The petitioners were
arrested and held pursuant to General Order No. 2 of the
President (September 22, 1972), "for being participants or for
having given aid and comfort in the conspiracy to seize political
and state power in the country and to take over the
Government by force ..."
General Order No. 2 was issued by the President in the
exercise of the powers he assumed by virtue of Proclamation
No. 1081 (September 21, 1972) placing the entire country
under martial law. The portions of the proclamation
immediately in point read as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines by
virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire
Philippines as defined in Article I, Section 1
of the Constitution under martial law and, in
my capacity as their Commander-in-Chief,
do hereby command the Armed Forces of
the Philippines, to maintain law and order
throughout the Philippines, prevent or
suppress all forms of lawless violence as
well as any act of insurrection or rebellion
and to enforce obedience to all the laws
and decrees, orders and regulations
promulgated by me personally or upon my
direction.
In addition, I do hereby order that all
persons presently detained, as well as all
others who may hereafter be similarly
detained for the crimes of insurrection or
rebellion, and all other crimes and offenses
committed in furtherance or on the
occasion thereof, or incident thereto, or in
connection therewith, for crimes against
national security and the law of nations,
crimes against public order, crimes
FINALS CONSTITUTION I ACJUCO 205
involving usurpation of authority, rank, title
and improper use of names, uniforms and
insignia, crimes committed by public
officers, and for such other crimes as will
be enumerated in orders that I shall
subsequently promulgate, as well as
crimes as a consequence of any violation
of any decree, order or regulation
promulgated by me personally or
promulgated upon my direction shall be
kept under detention until otherwise
ordered released by me or by my duly
designated representative.
The provision of the 1935 Constitution referred to in the
proclamation reads: "the President shall be commander-in-
chief of all armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, he
may suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial law."
1. The first major issue raised by the parties is whether this
Court may inquire into the validity of Proclamation No. 1081.
Stated more concretely, is the existence of conditions claimed
to justify the exercise of the power to declare martial law
subject to judicial inquiry? Is the question political or justiciable
in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino
hold that the question is political and therefore its determination
is beyond the jurisdiction of this Court. The reasons are given
at length in the separate opinions they have respectively
signed. Justice Fernandez adds that as a member of the
Convention that drafted the 1973 Constitution he believes that
"the Convention put an imprimatur on the proposition that the
validity of a martial law proclamation and its continuation is
political and non-justiciable in character."
Justice Barredo, on the other hand, believes that political
questions are not per se beyond the Court's jurisdiction, the
judicial power vested in it by the Constitution being plenary and
all-embracing, but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with
the Executive's Proclamation, dealing as it does with national
security, for which the responsibility is vested by the charter in
him alone. But the Court should act, Justice Barredo opines,
when its abstention from acting would result in manifest and
palpable transgression of the Constitution proven by facts of
judicial notice, no reception of evidence being contemplated for
purposes of such judicial action.
It may be noted that the postulate of non-justiciability as
discussed in those opinions involves disparate methods of
approach. Justice Esguerra maintains that the findings of the
President on the existence of the grounds for the declaration
of martial law are final and conclusive upon the Courts. He
disagrees vehemently with the ruling in Lansang vs. Garcia, 42
SCRA 448, December 11, 1971, and advocates a return
to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs.
Castañeda, 91 Phil. 882 (1952). Justice Barredo, for his part,
holds that Lansang need not be overturned, indeed does not
control in these cases. He draws a distinction between the
power of the President to suspend the privilege of the writ
of habeas corpus, which was the issue in Lansang, and his
power to proclaim martial law, calling attention to the fact that
while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such
prohibition or qualification with respect to the declaration of
martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and
Aquino concur, finds that there is no dispute as to the existence
of a state of rebellion in the country, and on that premise
emphasizes the factor of necessity for the exercise by the
President of his power under the Constitution to declare martial
law, holding that the decision as to whether or not there is
such necessity is wholly confided to him and therefore is not
subject to judicial inquiry, his responsibility being directly to the
people.
Arrayed on the side of justiciability are Justices Castro,
Fernando, Teehankee and Muñoz Palma. They hold that the
constitutional sufficiency of the proclamation may be inquired
into by the Court, and would thus apply the principle laid down
in Lansang although that case refers to the power of the
President to suspend the privilege of the writ of habeas corpus.
The recognition of justiciability accorded to the question in
Lansang, it should be emphasized, is there expressly
distinguished from the power of judicial review in ordinary civil
or criminal cases, and is limited to ascertaining "merely
whether he (the President) has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him
or to determine the wisdom of his act." The test is not whether
the President's decision is correct but whether, in suspending
the writ, he did or did not act arbitrarily. Applying this test, the
finding by the Justices just mentioned is that there was no
arbitrariness in the President's proclamation of martial law
pursuant to the 1935 Constitution; and I concur with them in
that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to
the existence of a state of rebellion in the country, had not
disappeared, indeed had been exacerbated, as events shortly
before said proclamation clearly demonstrated. On this Point
the Court is practically unanimous; Justice Teehankee merely
refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the
Court on the issue of justiciability is of not much more than
academic interest for purposes of arriving at a judgment. I am
not unduly exercised by Americas decisions on the subject
written in another age and political clime, or by theories of
foreign authors in political science. The present state of martial
law in the Philippines is peculiarly Filipino and fits into no
traditional patterns or judicial precedents.
In the first place I am convinced (as are the other Justices),
without need of receiving evidence as in an ordinary adversary
court proceeding, that a state of rebellion existed in the country
when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the
courts but of all observant people residing here at the time.
Many of the facts and events recited in detail in the different
"Whereases" of the proclamation are of common knowledge.
The state of rebellion continues up to the present. The
argument that while armed hostilities go on in several
provinces in Mindanao there are none in other regions except
in isolated pockets in Luzon, and that therefore there is no
need to maintain martial law all over the country, ignores the
sophisticated nature and ramifications of rebellion in a modern
setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own
choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is
no actual fighting. Underground propaganda, through printed
news sheets or rumors disseminated in whispers; recruitment
of armed and ideological adherents, raising of funds,
procurement of arms and material, fifth-column activities
including sabotage and intelligence — all these are part of the
rebellion which by their nature are usually conducted far from
the battle fronts. They cannot be counteracted effectively
unless recognized and dealt with in that context.
FINALS CONSTITUTION I ACJUCO 206

Secondly, my view, which coincides with that of other members
of the Court as stated in their opinions, is that the question of
validity of Proclamation No. 1081 has been foreclosed by the
transitory provision of the 1973 Constitution [Art. XVII, Sec.
3(2)] that "all proclamations, orders, decrees, instructions, and
acts promulgated, issued, or done by the incumbent President
shall be part of the law of the land and shall remain valid, legal,
binding and effective even after ... the ratification of this
Constitution ..." To be sure, there is an attempt in these cases
to resuscitate the issue of the effectivity of the new
Constitution. All that, however, is behind us now. The question
has been laid to rest by our decision in Javellana vs. Executive
Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of
course by the existing political realities both in the conduct of
national affairs and in our relations with other countries.
On the effect of the transitory provision Justice Muñoz Palma
withholds her assent to any sweeping statement that the same
in effect validated, in the constitutional sense, all "such
proclamations, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President." All that she
concedes is that the transitory provision merely gives them
"the imprimatur of a law but not of a constitutional mandate,"
and as such therefore "are subject to judicial review when
proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed,
any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the
proclamation of martial law — has become moot and
purposeless as a consequence of the general referendum of
July 27-28, 1973. The question propounded to the voters was:
"Under the (1973) Constitution, the President, if he so desires,
can continue in office beyond 1973. Do you want President
Marcos to continue beyond 1973 and finish the reforms he
initiated under Martial Law?" The overwhelming majority of
those who cast their ballots, including citizens between 15 and
18 years, voted affirmatively on the proposal. The question was
thereby removed from the area of presidential power under the
Constitution and transferred to the seat of sovereignty itself.
Whatever may be the nature of the exercise of that power by
the President in the beginning — whether or not purely political
and therefore non-justiciable — this Court is precluded from
applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from
detention but have not withdrawn their petitions because they
are still subject to certain restrictions,5 the ruling of the Court is
that the petitions should be dismissed. The power to detain
persons even without charges for acts related to the situation
which justifies the proclamation of martial law, such as the
existence of a state of rebellion, necessarily implies the power
(subject, in the opinion of the Justices who consider Lansang
applicable, to the same test of arbitrariness laid down therein),
to impose upon the released detainees conditions or
restrictions which are germane to and necessary to carry out
the purposes of the proclamation. Justice Fernando, however,
"is for easing the restrictions on the right to travel of petitioner
Rodrigo" and others similarly situated and so to this extent
dissents from the ruling of the majority; while Justice
Teehankee believes that those restrictions do not constitute
deprivation of physical liberty within the meaning of the
constitutional provision on the privilege of the writ of habeas
corpus.
is, that the proclamation of martial law automatically suspends
the privilege of the writ as to the persons referred to, the Court
is practically unanimous. Justice Fernando, however, says that
to him that is still an open question; and Justice Muñoz Palma
qualifiedly dissents from the majority in her separate opinion,
but for the reasons she discusses therein votes for the
dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE
REASONS STATED BY THE MEMBERS OF THE COURT IN
THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY
RENDERED DISMISSING ALL THE PETITIONS, EXCEPT
THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN
BY THE RESPECTIVE PETITIONERS WITH THE
APPROVAL OF THIS COURT, AS HEREINABOVE
MENTIONED. NO COSTS.
Makasiar, Esguerra, Fernandez, Muñoz Palma and Aquino,
JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was
handed to Chief Justice Querube C. Makalintal on Monday,
September 9, 1974, for promulgation (together with the
individual opinions of the Chief Justice and the other Justices)
on September 12 (today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released
from military custody. The implications of this supervening
event were lengthily discussed by the Court in its deliberations
in the afternoon. Eleven members thereafter voted to dismiss
Diokno's petition as being "moot and academic;" I cast the lone
dissenting vote. Although perhaps in the strictest technical
sense that accords with conventional legal wisdom, the petition
has become "moot" because Diokno has been freed from
physical confinement, I am nonetheless persuaded that the
grave issues of law he has posed and the highly insulting and
derogatory imputations made by him against the Court and its
members constitute an inescapable residue of questions of
transcendental dimension to the entire nation and its destiny
and to the future of the Court — questions that cannot and
should not be allowed to remain unresolved and unanswered.
I have thus not found it needful nor even advisable to recast
my separate opinion or change a word of it.
I invite the reader to assess my 38-page separate opinion
which immediately follows, in the light of the foregoing context
and factual setting.

It need only be added that, to my mind, implicit in a state of

martial law is the suspension of the said privilege with respect
to persons arrested or detained for acts related to the basic
objective of the proclamation, which is to suppress invasion,
insurrection, or rebellion, or to safeguard public safety against
imminent danger thereof. The preservation of society and
national survival take precedence. On this particular point, that
FINALS CONSTITUTION I ACJUCO 207

Olaquer vs. MC No. 4, 150 SCRA 144 (1987)

In 1979, Olaguer and some others were detained by military

personnel and they were placed inCamp Bagong Diwa.
Logauer and his group are all civilians. They were charged with
(1) unlawfulpossession of explosives and incendiary
devices; (2) conspiracy to assassinate President andMrs.
Marcos; (3) conspiracy to assassinate cabinet members Juan
Ponce Enrile, Francisco Tatadand Vicente Paterno; (4)
conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño
andOnofre Corpus; (5) arson of nine buildings; (6) attempted
murder of Messrs. Leonardo Perez,Teodoro Valencia and
Generals Romeo Espino and Fabian Ver; and (7)
conspiracyand proposal to commit rebellion, and inciting to
rebellion. On August 19, 1980, the petitionerswent to the SC
and filed the instant Petition for prohibition and habeas corpus.
ISSUE:
Whether or not the petition for habeas corpus be granted.
HELD:
The petition for habeas corpus has become moot and
academic because by the time thecase reached the SC
Olaguer and his companions were already released from
military
confinement. “When the release of the persons in whose behalf
the application for a writ of habeas corpus was filed is effected,
the petition for the issuance of the writ becomes moot
andacademic. 18 Inasmuch as the herein petitioners have
been released from their confinement inmilitary detention
centers, the instant Petitions for the issuance of a writ of
habeas corpus
should be dismissed for having become moot and academic.”
But the military court
created totry the case of Olaguer (and the decision it rendered)
still continues to subsist.
ISSUE2:
The issue is then shifted to: Whether or not a military tribunal
has the jurisdiction to trycivilians while the civil courts are open
and functioning.
HELD:
The SC nullified for lack of jurisdiction all decisions rendered
by the military courts ortribunals during the period of martial
law in all cases involving civilian defendants. A
militarycommission or tribunal cannot try and exercise
jurisdiction, even during the period of martiallaw, over civilians
for offenses allegedly committed by them as long as the civil
courts are openand functioning, and that any judgment
rendered by such body relating to a civilian is null andvoid for
lack of jurisdiction on the part of the military tribunal concerned.
FINALS CONSTITUTION I ACJUCO 208
GR No. 162318
NAVALES VS. ABAYA
DECISION
CALLEJO, SR, J.:
Before the Court are two petitions essentially assailing
the jurisdiction of the General Court-Martial to conduct the
court-martial proceedings involving several junior officers and
enlisted men of the Armed Forces of the Philippines (AFP)
charged with violations of the Articles of War (Commonwealth
Act No. 408, as amended) in connection with their participation
in the take-over of the Oakwood Premier Apartments in Ayala
Center, Makati City on July 27, 2003.
In G.R. No. 162341, Roberto Rafael Pulido, a lawyer,
filed with this Court a Petition for Habeas Corpus seeking the
release of his clients, junior officers and enlisted men of the
AFP, who are allegedly being unlawfully detained by virtue of
the Commitment Order[1] dated August 2, 2003 issued by
General Narciso L. Abaya, Chief of Staff of the AFP, pursuant
to Article 70 of the Articles of War. Under the said commitment
order, all the Major Service Commanders and the Chief of the
Intelligence Service of the Armed Forces of the Philippines
(ISAFP) were directed to take custodial responsibility of all the
military personnel involved in the 27 July 2003 mutiny
belonging to their respective commands. This included all the
junior officers and enlisted men (hereinafter referred to as
Capt. Reaso,[2] et al.) who are subject of the instant petition for
habeas corpus. The commitment order, however, expressly
stated that LtSG. Antonio F. Trillanes, LtSG. James A. Layug,
Capt. Garry C. Alejano, Capt. Milo D. Maestrecampo, Capt.
Gerardo O. Gambala, and Capt. Nicanor E. Faeldon would
remain under the custody of the Chief of the ISAFP. [3]
In G.R. No. 162318, the petitioners (hereinafter referred
to as 1Lt. Navales, et al.), seven of the detained junior officers
and enlisted men, filed with this Court a Petition for Prohibition
under Rule 65 of the Rules of Court seeking to enjoin the
General Court-Martial from proceeding with the trial of the
petitioners and their co-accused for alleged violations of the
Articles of War.
Named as respondents in the two petitions are General
Narciso Abaya who, as Chief of Staff of the AFP, exercises
command and control over all the members and agencies of
the AFP, and Brigadier General Mariano Sarmiento, Jr., the
Judge Advocate General of the AFP and officer in command
of the Judge Advocate General Office (JAGO), the agency of
the AFP tasked to conduct the court-martial proceedings.
[4]
Background
At past 1:00 a.m. of July 27, 2003, more than three
hundred junior officers and enlisted men, mostly from the elite
units of the AFP the Philippine Armys Scout Rangers and the
Philippine Navys Special Warfare Group (SWAG) quietly
entered the premises of the Ayala Center in Makati City. They
disarmed the security guards and took over the Oakwood
Premier Apartments (Oakwood). They planted explosives
around the building and in its vicinity. Snipers were posted at
the Oakwood roof deck.
The soldiers, mostly in full battle gear and wearing red
arm bands, were led by a small number of junior officers,
widely known as the Magdalo Group. The leaders were later
identified as including Navy LtSG. Antonio Trillanes IV, Army
Capt. Gerardo Gambala, Army Capt. Milo Maestrecampo,
Navy LtSG. James Layug, and Marine Capt. Gary Alejano.
Between 4:00 to 5:00 a.m., the soldiers were able to
issue a public statement through the ABS-CBN News (ANC)
network. They claimed that they went to Oakwood to air their
grievances against the administration of President Gloria
Macapagal Arroyo. Among those grievances were: the graft
and corruption in the military, the sale of arms and ammunition
to the enemies of the State, the bombings in Davao City which
were allegedly ordered by Brig. Gen. Victor Corpus, Chief of
the ISAFP, in order to obtain more military assistance from the
United States government, and the micro-management in the
AFP by then Department of National Defense (DND) Secretary
Angelo Reyes. They declared their withdrawal of support from
the chain of command and demanded the resignation of key
civilian and military leaders of the Arroyo administration.
Around 9:00 a.m., Pres. Arroyo gave the soldiers until
5:00 p.m. to give up their positions peacefully and return to
barracks. At about 1:00 p.m., she declared the existence of a
state of rebellion and issued an order to use reasonable force
in putting down the rebellion. A few hours later, the soldiers
again went on television reiterating their grievances. The
deadline was extended twice, initially to 7:00 p.m., and later,
indefinitely.
In the meantime, a series of negotiations ensued
between the soldiers and the Government team led by
Ambassador Roy Cimatu. An agreement was forged between
the two groups at 9:30 p.m. Shortly thereafter, Pres. Arroyo
announced that the occupation of Oakwood was over. The
soldiers agreed to return to barracks and were out of the
Oakwood premises by 11:00 p.m.
The Filing of Charges
Under the Information[5] dated August 1, 2003 filed with
the Regional Trial Court (RTC) of Makati City, the Department
of Justice (DOJ) charged 321 of those soldiers who took part
in the Oakwood Incident with violation of Article 134-A (coup
detat) of the Revised Penal Code.[6] Among those charged
were petitioners 1Lt. Navales, et al. (G.R. No. 162318) and
those who are subject of the petition for habeas corpus Capt.
Reaso, et al. (G.R. No. 162341). The case, entitled People v.
Capt. Milo Maestrecampo, et al., was docketed as Criminal
Case No. 03-2784 and raffled to Branch 61 presided by Judge
Romeo F. Barza.
On September 12, 2003, several (243 in number) of the
accused in Criminal Case No. 03-2784 filed with the RTC
(Branch 61) an Omnibus Motion praying that the trial court:
1. [A]ssume jurisdiction over all the charges filed before the
military tribunal in accordance with Republic Act No. 7055; and
2. Order the prosecution to present evidence to establish
probable cause against 316 of the 321 accused and, should
the prosecution fail to do so, dismiss the case as against the
316 other accused.[7]
While the said motion was pending resolution, the DOJ
issued the Resolution dated October 20, 2003 finding probable
cause for coup detat[8] against only 31 of the original 321
accused and dismissing the charges against the other 290 for
insufficiency of evidence.
Thus, upon the instance of the prosecution, the RTC
(Branch 61), in its Order[9] dated November 14, 2003, admitted
the Amended Information[10] dated October 30, 2003 charging
only 31 of the original accused with the crime of coup
detat defined under Article 134-A of the Revised Penal
Code.[11] Only the following were charged under the Amended
Information: CPT. MILO D. MAESTRECAMPO, LTSG.
ANTONIO F. TRILLANES IV, CPT. GARY C. ALEJANO,
FINALS CONSTITUTION I ACJUCO 209
LTSG. JAMES A. LAYUG, CPT. LAURENCE LUIS B.
SOMERA, CPT. GERARDO O. GAMBALA, CPT. NICANOR
FAELDON, CPT. ALBERT T. BALOLOY, CPT. SEGUNDINO
P. ORFIANO, JR., CPT. JOHN P. ANDRES, CPT. ALVIN H.
EBREO, 1LT. FLORENTINO B. SOMERA, 1LT. CLEO B.
DUNGGA-AS, 1LT. SONNY S. SARMIENTO, 1LT. AUDIE S.
TOCLOY, 1LT. VON RIO TAYAB, 1LT. REX C. BOLO, 1LT.
LAURENCE R. SAN JUAN, 1LT. WARREN LEE G.
DAGUPON, 1LT. NATHANIEL N. RABONZA, 2LT.
KRISTOFFER BRYAN M. YASAY, 1LT. JONNEL P.
SANGGALANG, 1LT. BILLY S. PASCUA, 1LT. FRANCISCO
ACEDILLO, LTSG. MANUEL G. CABOCHAN, LTSG.
EUGENE LOUIE GONZALES, LTSG. ANDY G. TORRATO,
LTJG. ARTURO S. PASCUA, JR., ENS. ARMAND
PONTEJOS, PO3 JULIUS J. MESA, PO3 CESAR
GONZALES, and several JOHN DOES and JANE DOES.
Further, the said Order expressly stated that the case against
the other 290 accused, including petitioners 1Lt. Navales, et al.
and those who are subject of the petition for habeas corpus,
Capt. Reaso, et al., was dismissed. In another Order dated
November 18, 2003, the RTC (Branch 61) issued commitment
orders against those 31 accused charged under the Amended
Information and set their arraignment.
Meanwhile, 1Lt. Navales, et al. and Capt. Reaso, et al.,
who were earlier dropped as accused in Criminal Case No. 03-
2784, were charged before the General Court-Martial with
violations of the Articles of War (AW), particularly: AW 67
(Mutiny), AW 97 (Conduct Prejudicial to Good Order and
Military Discipline), AW 96 (Conduct Unbecoming an Officer
and a Gentleman), AW 63 (Disrespect to the President, the
Secretary of Defense, etc.) and AW 64 (Disrespect Towards
Superior Officer).[12] On the other hand, Capt. Maestrecampo
and the 30 others who remained charged under the Amended
Information were not included in the charge sheets for
violations of the Articles of War.
Thereafter, Criminal Case No. 03-2784 was consolidated
with Criminal Case No. 03-2678, entitled People v. Ramon
Cardenas, pending before Branch 148 of the RTC of Makati
City, presided by Judge Oscar B. Pimentel.
On February 11, 2004, acting on the earlier Omnibus
Motion filed by the 243 of the original accused under the
Information dated August 1, 2003, the RTC (Branch 148)
issued an Order, the dispositive portion of which reads:
WHEREFORE, premises considered, in view of the Orders
dated November 14 and 18, 2003 of Judge Romeo Barza, the
Omnibus Motion to: 1) Assume jurisdiction over all charges
filed before the Military Courts in accordance with R.A. 7055;
and 2) Implement the August 7, 2003 Order of the Court
requiring the prosecution to produce evidence to establish
probable cause are hereby considered MOOT AND
ACADEMIC and, lastly, all charges before the court-martial
against the accused (those included in the Order of November
18, 2003) as well as those former accused (those included in
the Order of November 14, 2003) are hereby declared not
service-connected, but rather absorbed and in furtherance to
the alleged crime of coup detat.[13]
In the Notice of Hearing dated March 1, 2004, the
General Court-Martial set on March 16, 2004 the
arraignment/trial of those charged with violations of the Articles
of War in connection with the July 27, 2003 Oakwood Incident.
The present petitions were then filed with this Court.
Acting on the prayer for the issuance of temporary restraining
order in the petition for prohibition in G.R. No. 162318, this
Court, in the Resolution dated March 16, 2004, directed the
parties to observe the status quo prevailing before the filing of
the petition.[14]
The Petitioners Case
In support of the petitions for prohibition and for habeas
corpus, the petitioners advance the following arguments:
I. UNDER REPUBLIC ACT NO. 7055, THE
RESPONDENTS AND THE GENERAL
COURT-MARTIAL ARE WITHOUT ANY
JURISDICTION TO FURTHER CONDUCT
PROCEEDINGS AGAINST THE
PETITIONERS AND THEIR COLLEAGUES
BECAUSE THE REGIONAL TRIAL COURT
HAS ALREADY DETERMINED THAT THE
OFFENSES ARE NOT SERVICE-RELATED
AND ARE PROPERLY WITHIN THE
JURISDICTION OF THE CIVILIAN
COURTS;[15] and
II. THE RESPONDENTS HAVE NO AUTHORITY
TO FURTHER DETAIN THE JUNIOR
OFFICERS AND ENLISTED MEN AS THE
CHARGES FOR COUP DETAT BEFORE THE
REGIONAL TRIAL COURT HAVE BEEN
DISMISSED FOR LACK OF EVIDENCE
UPON MOTION OF THE DEPARTMENT OF
JUSTICE.[16]
Citing Section 1[17] of Republic Act No. 7055,[18] the
petitioners theorize that since the RTC (Branch 148), in its
Order dated February 11, 2004, already declared that the
offenses for which all the accused were charged were not
service-connected, but absorbed and in furtherance of the
crime of coup detat, the General Court-Martial no longer has
jurisdiction over them. As such, respondents Gen. Abaya and
the JAGO have no authority to constitute the General Court-
Martial, to charge and prosecute the petitioners and their co-
accused for violations of the Articles of War in connection with
the July 27, 2003 Oakwood Incident. The petitioners posit that,
as a corollary, there is no longer any basis for their continued
detention under the Commitment Order dated August 2, 2003
issued by Gen. Abaya considering that the charge against
them for coup detat had already been dismissed.
In G.R. No. 162318, the petitioners pray that the
respondents be enjoined from constituting the General Court-
Martial and from further proceeding with the court-martial of the
petitioners and their co-accused for violations of the Articles of
War in connection with the Oakwood Incident of July 27, 2003.
In G.R. No. 162341, the petitioner prays that the respondents
be ordered to explain why the detained junior officers and
enlisted men subject of the petition for habeas corpus should
not be released without delay.
The Respondents Arguments
The respondents, through the Office of the Solicitor
General, urge the Court to dismiss the petitions. The
respondents contend that the Order dated February 11, 2004
promulgated by the RTC (Branch 148), insofar as it resolved
the Omnibus Motion and declared that the charges against all
the accused, including those excluded in the Amended
Information, were not service-connected, is null and void. They
aver that at the time that the said motion was resolved,
petitioners 1Lt. Navales, et al. and Capt. Reaso, et al. (as
movants therein) were no longer parties in Criminal Case No.
03-2784 as the charge against them was already dismissed by
the RTC (Branch 61) in the Order dated November 14, 2003.
Thus, 1Lt. Navales, et al. and Capt. Reaso, et al. no longer had
any personality to pursue the Omnibus Motion since one who
has no right or interest to protect cannot invoke the jurisdiction
of the court. In other words, the petitioners were not real parties
FINALS CONSTITUTION I ACJUCO 210
in interest at the time that their Omnibus Motion was resolved
by the RTC (Branch 148).
The respondents further claim denial of due process as
they were not given an opportunity to oppose or comment on
the Omnibus Motion. Worse, they were not even given a copy
of the Order dated February 11, 2004. As such, the same
cannot be enforced against the respondents, especially
because they were not parties to Criminal Case No. 03-2784.
The respondents, likewise, point out a seeming
ambiguity in the February 11, 2004 Order as it declared, on
one hand, that the charges filed before the court-martial were
not service-connected, but on the other hand, it ruled that the
Omnibus Motion was moot and academic. According to the
respondents, these two pronouncements cannot stand side by
side. If the Omnibus Motion was already moot and academic,
because the accused who filed the same were no longer being
charged with coup detat under the Amended Information, then
the trial court did not have any authority to further resolve and
grant the same Omnibus Motion.
The respondents maintain that since 1Lt. Navales, et al.
and Capt. Reaso, et al. were not being charged with coup
detat under the Amended Information, the trial court could not
make a finding that the charges filed against them before the
General Court-Martial were in furtherance of coup detat. For
this reason, the declaration contained in the dispositive portion
of the February 11, 2004 Order - that charges filed against the
accused before the court-martial were not service-connected -
cannot be given effect.
Similarly invoking Section 1 of Rep. Act No. 7055, the
respondents vigorously assert that the charges against 1Lt.
Navales, et al. and Capt. Reaso, et al. filed with the General
Court-Martial, i.e., violations of the Articles of War 63, 64, 67,
96 and 97, are, in fact, among those declared to be service-
connected under the second paragraph of this provision. This
means that the civil court cannot exercise jurisdiction over the
said offenses, the same being properly cognizable by the
General Court-Martial. Thus, the RTC (Branch 148) acted
without or in excess of jurisdiction when it declared in its
February 11, 2004 Order that the charges against those
accused before the General Court-Martial were not service-
connected, but absorbed and in furtherance of the crime
of coup detat. Said pronouncement is allegedly null and void.
The respondents denounce the petitioners for their forum
shopping. Apparently, a similar petition (petition for habeas
corpus, prohibition with injunction and prayer for issuance of a
temporary restraining order) had been filed by the petitioners
co-accused with the Court of Appeals, docketed as CA-G.R.
SP No. 82695. The case was resolved against the petitioners
therein.
The respondents pray that the petitions be dismissed for
lack of merit.
Issue
The sole issue that needs to be resolved is whether or
not the petitioners are entitled to the writs of prohibition
and habeas corpus.
The Courts Ruling
We rule in the negative.
We agree with the respondents that the sweeping
declaration made by the RTC (Branch 148) in the dispositive
portion of its Order dated February 11, 2004 that all charges
before the court-martial against the accused were not service-
connected, but absorbed and in furtherance of the crime
of coup detat, cannot be given effect. For reasons which shall
be discussed shortly, such declaration was made without or in
excess of jurisdiction; hence, a nullity.
The trial courts declaration was
made when the Omnibus Motion
had already been rendered moot
and academic with respect to
1Lt. Navales, et al. and Capt.
Reaso, et al. by reason of the
dismissal of the charge of coup
detat against them
The Order dated February 11, 2004 was issued
purportedly to resolve the Omnibus Motion, which prayed for
the trial court to, inter alia, acquire jurisdiction over all the
charges filed before the military courts in accordance with Rep.
Act No. 7055. The said Omnibus Motion was filed on
September 12, 2003 by 243 of the original accused under the
Information dated August 1, 2003. However, this information
was subsequently superseded by the Amended Information
dated October 20, 2003 under which only 31 were charged with
the crime of coup detat. In the November 14, 2003 Order of the
RTC (Branch 61), the Amended Information was admitted and
the case against the 290 accused, including 1Lt. Navales, et
al. and Capt. Reaso, et al., was dismissed. The said Order
became final and executory since no motion for
reconsideration thereof had been filed by any of the parties.
Thus, when the RTC (Branch 148) eventually resolved
the Omnibus Motion on February 11, 2004, the said motion had
already been rendered moot by the November 14, 2003 Order
of the RTC (Branch 61) admitting the Amended Information
under which only 31 of the accused were charged and
dismissing the case as against the other 290. It had become
moot with respect to those whose charge against them was
dismissed, including 1Lt. Navales, et al. and Capt. Reaso, et
al., because they were no longer parties to the case. This was
conceded by the RTC (Branch 148) itself as it stated in the
body of its February 11, 2004 Order that:
Now, after going over the records of the case, the Court is of
the view that the movants first concern in their omnibus motion,
i.e., assume jurisdiction over all charges filed before military
courts in accordance with R.A. 7055, has been rendered moot
and academic by virtue of the Order dated November 14, 2003
dismissing the case against TSg. Leonel M. Alnas, TSg.
Ramon B. Norico, SSg. Eduardo G. Cedeno, et al. and finding
probable cause in the Order dated November 18, 2003 against
accused Cpt. Milo D. Maestrecampo, LtSg. Antonio F. Trillanes
IV, et al., issued by Judge Barza.
In view of the Order of Judge Barza dated November 14, 2003
dismissing the case against aforesaid accused, the Court,
therefore, can no longer assume jurisdiction over all charges
filed before the military courts and this Court cannot undo nor
reverse the Order of November 14, 2003 of Judge Barza, there
being no motion filed by the prosecution to reconsider the order
or by any of the accused.[19]
Accordingly, in the dispositive portion of the said Order,
the RTC (Branch 148) held that the Omnibus Motion was
considered moot and academic. And yet, in the same
dispositive portion, the RTC (Branch 148) still proceeded to
declare in the last clause thereof that all the charges before the
court-martial against the accused (those included in the Order
of November 18, 2003) as well as those former accused (those
included in the Order of November 14, 2003) are hereby
FINALS CONSTITUTION I ACJUCO 211
declared not service-connected, on its perception that the
crimes defined in and penalized by the Articles of War were
committed in furtherance of coup detat; hence, absorbed by
the latter crime.
As earlier explained, insofar as those whose case
against them was dismissed, there was nothing else left to
resolve after the Omnibus Motion was considered moot and
academic. Indeed, as they were no longer parties to the case,
no further relief could be granted to them. 1Lt. Navales, et al.
and Capt. Reaso, et al. could be properly considered as
strangers to the proceedings in Criminal Case No. 03-2784.
And in the same manner that strangers to a case are not bound
by any judgment rendered by the court,[20] any rulings made by
the trial court in Criminal Case No. 03-2784 are no longer
binding on 1Lt. Navales, et al. and Capt. Reaso, et al. The RTC
(Branch 148) itself recognized this as it made the statement,
quoted earlier, that in view of the Order of Judge Barza dated
November 14, 2003 dismissing the case against aforesaid
accused, the Court, therefore, can no longer assume
jurisdiction over all charges filed before the military courts and
this Court cannot undo nor reverse the Order of November 14,
2003 of Judge Barza there being no motion filed by the
prosecution to reconsider the order or by any of the accused. [21]
Thus, 1Lt. Navales, et al. and Capt. Reaso, et al., who
are no longer charged with coup detat, cannot find solace in
the declaration of the RTC (Branch 148) that the charges filed
before the General Court-Martial against them were not
service-connected. The same is a superfluity and cannot be
given effect for having been made by the RTC (Branch 148)
without or in excess of its jurisdiction.
Such declaration was made by the
RTC (Branch 148) in violation of
Section 1, Republic Act No. 7055
Section 1 of Rep. Act No. 7055 reads in full:
Section 1. Members of the Armed Forces of the Philippines and
other persons subject to military law, including members of the
Citizens Armed Forces Geographical Units, who commit
crimes or offenses penalized under the Revised Penal Code,
other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims,
or offended parties which may be natural or juridical persons,
shall be tried by the proper civil court, except when the offense,
as determined before arraignment by the civil court, is service-
connected, in which case the offense shall be tried by court-
martial: Provided, That the President of the Philippines may, in
the interest of justice, order or direct at any time before
arraignment that any such crimes or offenses be tried by the
proper civil courts.
As used in this Section, service-connected crimes or offenses
shall be limited to those defined in Articles 54 to 70, Articles 72
to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.
In imposing the penalty for such crimes or offenses, the court-
martial may take into consideration the penalty prescribed
therefor in the Revised Penal Code, other special laws, or local
government ordinances.
The second paragraph of the above provision explicitly
specifies what are considered service-connected crimes or
offenses under Commonwealth Act No. 408 (CA 408), as
amended, also known as the Articles of War, to wit:
Articles 54 to 70:
Art. 54. Fraudulent Enlistment.
Art. 55. Officer Making Unlawful Enlistment.
Art. 56. False Muster.
Art. 57. False Returns.
Art. 58. Certain Acts to Constitute Desertion.
Art. 59. Desertion.
Art. 60. Advising or Aiding Another to Desert.
Art. 61. Entertaining a Deserter.
Art. 62. Absence Without Leave.
Art. 63. Disrespect Toward the President,
Vice-President, Congress of the Philippines,
or Secretary of National Defense.
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior
Officer.
Art. 66. Insubordinate Conduct Toward Non-
Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Art. 70. Arrest or Confinement.
Articles 72 to 92
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to
Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public
Service.
Art. 81. Dealing in Captured or Abandoned
Property.
Art. 82. Relieving, Corresponding With, or Aiding
the Enemy.
Art. 83. Spies.
Art. 84. Military Property. Willful or Negligent
Loss, Damage or Wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of
Military Property Issued to Soldiers.
Art. 86. Drunk on Duty.
Art. 87. Misbehavior of Sentinel.
Art. 88. Personal Interest in Sale of
Provisions.
Art. 88-A. Unlawfully Influencing Action of
Court.
Art. 89. Intimidation of Persons Bringing
Provisions.
Art. 90. Good Order to be Maintained and
Wrongs Redressed.
Art. 91. Provoking Speeches or Gestures.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and
Gentleman.
Art. 97 General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the
military courts the jurisdiction over the foregoing offenses. The
following deliberations in the Senate on Senate Bill No. 1468,
which, upon consolidation with House Bill No. 31130,
subsequently became Rep. Act No. 7055, are instructive:
Senator Shahani. I would like to propose an addition to Section
1, but this will have to be on page 2. This will be in line 5, which
should be another paragraph, but still within Section 1. This is
FINALS CONSTITUTION I ACJUCO 212
to propose a definition of what service-connected means,
because this appears on line 8. My proposal is the following:
SERVICE-CONNECTED OFFENSES SHALL MEAN THOSE
COMMITTED BY MILITARY PERSONNEL PURSUANT TO
THE LAWFUL ORDER OF THEIR SUPERIOR OFFICER OR
WITHIN THE CONTEXT OF A VALID MILITARY EXERCISE
OR MISSION.
I believe this amendment seeks to avoid any confusion as to
what service-connected offense means. Please note that
service-connected offense, under this bill, remains within the
jurisdiction of military tribunals.
So, I think that is an important distinction, Mr. President.
Senator Taada. Yes, Mr. President. I would just want to
propose to the Sponsor of this amendment to consider,
perhaps, defining what this service-related offenses would be
under the Articles of War. And so, I would submit for her
consideration the following amendment to her amendment
which would read as follows: AS USED IN THIS SECTION,
SERVICE-CONNECTED CRIMES OR OFFENSES SHALL BE
LIMITED TO THOSE DEFINED IN ARTICLES 54 TO 70,
ARTICLES 72 TO 75, ARTICLES 76 TO 83 AND ARTICLES
84 TO 92, AND ARTICLES 95 TO 97, COMMONWEALTH
ACT NO. 408 AS AMENDED.
This would identify, I mean, specifically, what these service-
related or connected offenses or crimes would be.
The President. What will happen to the definition of service-
connected offense already put forward by Senator Shahani?
Senator Taada. I believe that would be incorporated in the
specification of the Article I have mentioned in the Articles of
War.
SUSPENSION OF THE SESSION
The President. Will the Gentleman kindly try to work it out
between the two of you? I will suspend the session for a
minute, if there is no objection. [There was none.]
It was 5:02 p.m.
RESUMPTION OF THE SESSION
At 5:06 p.m., the session was resumed.
The President. The session is resumed.
Senator Taada. Mr. President, Senator Shahani has graciously
accepted my amendment to her amendment, subject to
refinement and style.
The President. Is there any objection? [Silence] There being
none, the amendment is approved.[22]
In the same session, Senator Wigberto E. Taada, the
principal sponsor of SB No. 1468, emphasized:
Senator Taada. Section 1, already provides that crimes of
offenses committed by persons subject to military law ... will be
tried by the civil courts, except, those which are service-related
or connected. And we specified which would be considered
service-related or connected under the Articles of War,
Commonwealth Act No. 408.[23]
It is clear from the foregoing that Rep. Act No. 7055 did
not divest the military courts of jurisdiction to try cases involving
violations of Articles 54 to 70, Articles 72 to 92 and Articles 95
to 97 of the Articles of War as these are considered service-
connected crimes or offenses. In fact, it mandates that these
shall be tried by the court-martial.
Indeed, jurisdiction is the power and authority of the court
to hear, try and decide a case.[24] Moreover, jurisdiction over
the subject matter or nature of the action is conferred only by
the Constitution or by law.[25] It cannot be (1) granted by the
agreement of the parties; (2) acquired, waived, enlarged or
diminished by any act or omission of the parties; or (3)
conferred by the acquiescence of the courts.[26] Once vested
by law on a particular court or body, the jurisdiction over the
subject matter or nature of the action cannot be dislodged by
any body other than by the legislature through the enactment
of a law. The power to change the jurisdiction of the courts is a
matter of legislative enactment which none but the legislature
may do. Congress has the sole power to define, prescribe and
apportion the jurisdiction of the courts. [27]
In view of the clear mandate of Rep. Act No. 7055, the
RTC (Branch 148) cannot divest the General Court-Martial of
its jurisdiction over those charged with violations of Articles 63
(Disrespect Toward the President etc.), 64 (Disrespect Toward
Superior Officer), 67 (Mutiny or Sedition), 96 (Conduct
Unbecoming an Officer and a Gentleman) and 97 (General
Article) of the Articles of War, as these are specifically included
as service-connected offenses or crimes under Section 1
thereof. Pursuant to the same provision of law, the military
courts have jurisdiction over these crimes or offenses.
There was no factual and legal basis for the RTC (Branch
148) to rule that violations of Articles 63, 64, 67, 96, and 97 of
the Articles of War were committed in furtherance of coup
detatand, as such, absorbed by the latter crime. It bears
stressing that, after a reinvestigation, the Panel of Prosecutors
found no probable cause for coup detat against the petitioners
and recommended the dismissal of the case against them. The
trial court approved the recommendation and dismissed the
case as against the petitioners. There is, as yet, no evidence
on record that the petitioners committed the violations of
Articles 63, 64, 96, and 97 of the Articles of War in furtherance
of coup detat.
In fine, in making the sweeping declaration that these
charges were not service-connected, but rather absorbed and
in furtherance of the crime of coup detat, the RTC (Branch 148)
acted without or in excess of jurisdiction. Such declaration is,
in legal contemplation, necessarily null and void and does not
exist.[28]
At this point, a review of its legislative history would put
in better perspective the raison detre of Rep. Act No. 7055. As
early as 1938, jurisdiction over offenses punishable under CA
408, as amended, also known as the Articles of War,
committed by persons subject to military law was vested on the
military courts. Thereafter, then President Ferdinand E.
Marcos promulgated Presidential Decree (PD) Nos.
1822,[29] 1850[30] and 1852.[31] These presidential decrees
transferred from the civil courts to the military courts jurisdiction
over all offenses committed by members of the AFP, the former
Philippine Constabulary, the former Integrated National Police,
including firemen, jail guards and all persons subject to military
law.
In 1991, after a series of failed coup detats, Rep. Act No.
7055 was enacted. In his sponsorship speech, Senator Taada
explained the intendment of the law, thus:
FINALS CONSTITUTION I ACJUCO 213

Senator Taada. The long and horrible nightmare of the past
continues to haunt us to this present day. Its vestiges remain
instituted in our legal and judicial system. Draconian decrees
which served to prolong the past dictatorial regime subsist to
rule our new-found lives. Two of these decrees, Presidential
Decree No. 1822 and Presidential Decree No. 1850, as
amended, remain intact as laws, in spite of the fact that four
years have passed since we regained our democratic freedom.
The late Mr. Chief Justice Claudio Teehankee enunciated in
the case of Olaguer vs. Military Commission No. 34 that the
greatest threat to freedom is the shortness of human memory.
PD No. 1822 and PD No. 1850 made all offenses committed
by members of the Armed Forces of the Philippines, the
Philippine Constabulary, the Integrated National Police,
including firemen and jail guards, and all persons subject to
military law exclusively triable by military courts though, clearly,
jurisdiction over common crimes rightly belongs to civil courts.
of habeas corpus should not be allowed after the party sought
to be released had been charged before any court or quasi-
judicial body.[34] The term court necessarily includes the
General Court-Martial. These rules apply to Capt. Reaso, et
al., as they are under detention pursuant to the Commitment
Order dated August 2, 2003 issued by respondent Chief of
Staff of the AFP pursuant to Article 70[35] of the Articles of War.
On the other hand, the office of the writ of prohibition is
to prevent inferior courts, corporations, boards or persons from
usurping or exercising a jurisdiction or power with which they
have not been vested by law. [36] As earlier discussed, the
General Court-Martial has jurisdiction over the charges filed
against petitioners 1Lt. Navales, et al. under Rep. Act No.
7055. A writ of prohibition cannot be issued to prevent it from
exercising its jurisdiction.
WHEREFORE, premises considered, the petitions are
hereby DISMISSED.
SO ORDERED.

Article II, Section 3 of the 1987 Constitution provides that

civilian authority is, at all times, supreme over the military.
Likewise, Article VIII, Section 1 declares that the judicial power
shall be vested in one Supreme Court and in such lower courts
as may be established by law.

In the case of Anima vs. The Minister of National Defense, (146

Supreme Court Reports Annotated, page 406), the Supreme
Court through Mr. Justice Gutierrez declared:

The jurisdiction given to military tribunals over common crimes

at a time when all civil courts were fully operational and freely
functioning constitutes one of the saddest chapters in the
history of the Philippine Judiciary.

The downgrading of judicial prestige caused by the glorification

of military tribunals ... the many judicial problems spawned by
extended authoritarian rule which effectively eroded judicial
independence and self-respect will require plenty of time and
determined efforts to cure.

The immediate return to civil courts of all cases which properly

belong to them is only a beginning.

...

Thus, as long as the civil courts in the land remain open and
are regularly functioning, military tribunals cannot try and
exercise jurisdiction over military men for criminal offenses
committed by them which are properly cognizable by the civil
courts. ...[32]

Clearly, in enacting Rep. Act No. 7055, the lawmakers

merely intended to return to the civilian courts the jurisdiction
over those offenses that have been traditionally within their
jurisdiction, but did not divest the military courts jurisdiction
over cases mandated by the Articles of War.

Conclusion

The writs of prohibition (G.R. No. 162318) and habeas

corpus (G.R. No. 162341) prayed for by the petitioners must
perforce fail. As a general rule, the writ of habeas corpus will
not issue where the person alleged to be restrained of his
liberty is in the custody of an officer under a process issued by
the court which has jurisdiction to do so. [33] Further, the writ
FINALS CONSTITUTION I ACJUCO 214
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF TEODOSIO LANSANG RODOLFO DEL
ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief,
Philippine Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL.
CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief,
Philippine Constabulary, COL. N. C. CAMELLO, in his
capacity as Chief of Staff, Philippine Constabulary and
HON. JUAN PONCE ENRILE in his capacity as Secretary,
Department of National defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF NEMESIO E. PRUDENTE FELICIDAD G.
PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU
GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS
CORPUSIN BEHALF OF GERARDO TOMAS, ALSO
KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE
LARA, in his capacity as Chairman, Committee on Legal
Assistance, Philippine Bar Association, petitioner,
vs.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF,
PHILIPPINE CONSTABULARY, respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine
Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS
CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO
AND HIS WIFE, MRS. BARCELISA C. DE CASTRO.
CARLOS C. RABAGO, in his capacity as President of the
Conference Delegates Association of the Philippines
(CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF ANTOLIN ORETA, JR. ANTOLIN ORETA,
JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO
OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE
OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief,
Philippine Constabulary, et al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E.
Tañada, Fortunato de Leon, R. G. Suntay and Juan T. David
for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.
Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos
Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar,
etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin
Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant
Solicitor General Bernardo P. Pardo for respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the
Liberal Party of the Philippines was holding a public meeting at
Plaza Miranda, Manila, for the presentation of its candidates in
the general elections scheduled for November 8, 1971, two (2)
hand grenades were thrown, one after the other, at the platform
where said candidates and other persons were. As a
consequence, eight (8) persons were killed and many more
injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as
serious, injuries which could have been fatal had it not been for
the timely medical assistance given to them.
On August 23, soon after noontime, the President of the
Philippines announced the issuance of Proclamation No. 889,
dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully
evaluated information, it is definitely
established that lawless elements in the
country, which are moved by common or
similar ideological conviction, design and
goal and enjoying the active moral and
material support of a foreign power and
being guided and directed by a well trained,
determined and ruthless group of men and
taking advantage of our constitutional
liberties to promote and attain their ends,
have entered into a conspiracy and have in
fact joined and banded their forces together
for the avowed purpose of actually staging,
undertaking and waging an armed
insurrection and rebellion in order to
forcibly seize political power in this country,
overthrow the duly constituted government,
and supplant our existing political social,
economic and legal order with an entirely
new one whose form of government,
whose system of laws, whose conception
of God and religion, whose notion of
individual rights and family relations, and
whose political, social and economic
precepts are based on the Marxist-Leninist-
Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting
in concert through front organizations that
are seemingly innocent and harmless,
have continuously and systematically
strengthened and broadened their
memberships through sustained and
careful recruiting and enlistment of new
adherents from among our peasantry,
laborers, professionals, intellectuals,
students, and mass media personnel, and
through such sustained and careful
recruitment and enlistment have
succeeded in infiltrating almost every
segment of our society in their ceaseless
determination to erode and weaken the
political, social, economic and moral
foundations of our existing government and
to influence many peasant, labor,
FINALS CONSTITUTION I ACJUCO 215
professional, intellectual, student and mass
media organizations to commit acts of
violence and depredations against our duly
constituted authorities, against the
members of our law enforcement agencies,
and worst of all, against the peaceful
members of our society;
WHEREAS, these lawless elements have
created a state of lawlessness and disorder
affecting public safety and the security of
the State, the latest manifestation of which
has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971,
which has resulted in the death and serious
injury of scores of persons;
WHEREAS, public safety requires that
immediate and effective action be taken in
order to maintain peace and order, secure
the safety of the people and preserve the
authority of the State;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the
privilege of the writ of habeas corpus, for
the persons presently detained, as well as
others who may be hereafter similarly
detained for the crimes of insurrection or
rebellion, and all other crimes and offenses
committed by them in furtherance or on the
occasion thereof, or incident thereto, or in
connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the
above-entitled cases, by the following persons, who, having
been arrested without a warrant therefor and then detained,
upon the authority of said proclamation, assail its validity, as
well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and
BAYANI ALCALA, the petitioners in Case No. L-33964 — filed
on August 24, 1971 — who, on August 22, 1971, between 8
a.m. and 6 p.m., were "invited" by agents of the Philippine
Constabulary — which is under the command of respondent
Brig. Gen. Eduardo M. Garcia — to go and did go to the
headquarters of the Philippine Constabulary, at Camp Crame,
Quezon City, for interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965
— filed, also, on August 24, 1971 — who was picked up in his
residence, at No. 55 Road, 3, Urduja Village, Quezon City, by
members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 —
or on August 28, 1971 — the same was amended to include
VICENTE ILAO and JUAN CARANDANG, as petitioners
therein, although, apart from stating that these additional
petitioners are temporarily residing with the original petitioner,
Rogelio V. Arienda, the amended petition alleged nothing
whatsoever as regards the circumstances under which said
Vicente Ilao and Juan Carandang are said to be illegally
deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 —
filed on August 25, 1971 — who was similarly arrested in his
residence, at No. 131-B Kamias Road, Quezon City, and
detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-
33982 — on August 27, 1971 — upon the ground that her
father, Dr. NEMESIO E. PRUDENTE, had, on August 22,
1971, at about 8 p.m., been apprehended by Constabulary
agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed — on August
30, 1971 — to intervene as one of the petitioners in Cases Nos.
L-33964, L-33965 and L-33973, he having been arrested by
members of the Constabulary on August 22, 1971, between
6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street,
Sta. Mesa Heights, Quezon City, and brought to Camp Crame,
Quezon City, where he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as
one of the petitioners in said three (3) cases, upon the ground
that, on August 23, 1971, at about 8 a.m., he was, likewise,
apprehended at Sta. Rosa, Laguna, by members of the
Philippine Constabulary and brought, first to the Constabulary
headquarters at Canlubang, Laguna, and, then, to Camp
Crame, Quezon City, where he is detained and restrained of
liberty;
8. TERESITO SISON, who was, also, allowed to intervene as
one of the petitioners in the same three (3) cases, he having
been arrested in his residence, at 318 Lakandula St., Angeles
City, on August 22, 1971, between 6 and 7 p.m., and taken to
the PC offices at Sto. Domingo, Angeles City, then to Camp
Olivas, San Fernando, Pampanga, and eventually to Camp
Crame, Quezon City, where he is restrained and deprived of
liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old
second year college students of St. Louis University, Baguio
City, on whose behalf, Domingo E. de Lara — in his capacity
as Chairman, Committee on Legal Assistance, Philippine Bar
Association — filed on September 3, 1971, the petition in Case
No. L-34004, upon the ground that said Gerardo Tomas had,
on August 23, 1971, at about 6 a.m., been arrested by
Constabulary agents, while on his way to school in the City of
Baguio, then brought to the Constabulary premises therein at
Camp Holmes, and, thereafter, taken, on August 24, 1971, to
Camp Olivas, Pampanga, and thence, on August 25, 1971, to
the Constabulary headquarters at Camp Crame, Quezon City,
where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 —
filed on September 7, 1971 — a 19-year old student of the U.P.
College in Baguio city — who, while allegedly on his way home,
at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m.,
was joined by three (3) men who brought him to the Burnham
Park, thence, to Camp Olivas at San Fernando, Pampanga,
and, thereafter, to Camp Crame, Quezon City, where he is
detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs.
BARCELISA C. DE CASTRO, on whose behalf Carlos C.
Rabago — as President of the Conference Delegates
Association of the Philippines (CONDA) — filed the petition in
Case No. L-34039 — on September 14, 1971 — against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about
3 p.m., Mrs. De Castro was arrested, while at Liamzon
Subdivision, Rosario, Pasig, Rizal, by agents of the
Constabulary, and taken to the PC headquarters at Camp
Crame, where, later, that same afternoon, her husband was
brought, also, by PC agents and both are detained;
FINALS CONSTITUTION I ACJUCO 216
12. ANTOLIN ORETA, JR., who filed the petition in Case No.
L-34265 — on October 26, 1971 — against said Gen. Garcia,
as Chief of the Constabulary, and Col. Prospero Olivas, Chief
of the Central Intelligence Service (CIS), Philippine
Constabulary, alleging that, upon invitation from said CIS, he
went, on October 20, 1971, to Camp Aguinaldo, Quezon City,
to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of
the Philippines, who referred petitioner to Col. Laroya of the
CIS; that the latter, in turn, referred him to CIS Investigator Atty.
Berlin Castillo and another CIS against, whose name is
unknown to the petitioner; and that, after being interrogated by
the two (2), petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on
November 10, 1971 — who was apprehended, by agents of
the Constabulary, in the evening of November 8, 1941, in
Quezon City, and then detained at Camp Crame, in the same
City.
Upon the filing of the aforementioned cases, the respondents
were forthwith required to answer the petitions therein, which
they did. The return and answer in L-33964 — which
was, mutatis mutandis, reproduced substantially or by
reference in the other cases, except L-34265 — alleges, inter
alia, that the petitioners had been apprehended and detained
"on reasonable belief" that they had "participated in the crime
of insurrection or rebellion;" that "their continued detention is
justified due to the suspension of the privilege of the writ
of habeas corpus pursuant to Proclamation No. 889 of the
President of the Philippines;" that there is "a state of
insurrection or rebellion" in this country, and that "public safety
and the security of the State required the suspension of the
privilege of the writ of habeas corpus," as "declared by the
President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted
on relevant facts gathered thru the coordinated efforts of the
various intelligence agents of our government but (of) which
the Chief Executive could not at the moment give a full account
and disclosure without risking revelation of highly classified
state secrets vital to its safely and security"; that the
determination thus made by the President is "final and
conclusive upon the court and upon all other persons" and
"partake(s) of the nature of political question(s) which cannot
be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v. Castañeda, 91 Phil. 882;
that petitioners "are under detention pending investigation and
evaluation of culpabilities on the reasonable belief" that they
"have committed, and are still committing, individually or in
conspiracy with others, engaged in armed struggle, insurgency
and other subversive activities for the overthrow of the
Government; that petitioners cannot raise, in these
proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners
taken into custody on the basis of the existence of evidence
sufficient to afford a reasonable ground to believe that
petitioners come within the coverage of persons to whom the
privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent
bona fide precautionary and preventive measure demanded by
the necessities of public safety, public welfare and public
interest"; that the President of the Philippines has "undertaken
concrete and abundant steps to insure that the constitutional
rights and privileges of the petitioners as well as of the other
persons in current confinement pursuant to Proclamation 889
remain unimpaired and unhampered"; and that "opportunities
or occasions for abuses by peace officers in the
implementation of the proclamation have been greatly
minimized, if not completely curtailed, by various safeguards
contained in directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National
Defense, dated August 21, 1971, directing, inter alia, in
connection with the arrest or detention of suspects pursuant to
Proclamation No. 889, that, except when caught inflagrante
delicto, no arrest shall be made without warrant authorized in
writing by the Secretary of National Defense; that such
authority shall not be granted unless, "on the basis of records
and other evidences," it appears satisfactorily, in accordance
with Rule 113, section 6(b), of the Rules of Court, that the
person to be arrested is probably guilty of the acts mentioned
in the proclamation; that, if such person will be charged with a
crime subject to an afflictive penalty under the Anti-Subversion
Act, the authorization for his arrest shall not be issued unless
supported by signed intelligence reports citing at least one
reliable witness to the same overt act; that no unnecessary or
unreasonable force shall be used in effecting arrests; and that
arrested persons shall not be subject to greater restraint than
is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated
August 23, 27, and 30, 1971, to all units of his command,
stating that the privilege of the writ is suspended for no other
persons than those specified in the proclamation; that the
same does not involve material law; that precautionary
measures should be taken to forestall violence that may be
precipitated by improper behavior of military personnel; that
authority to cause arrest under the proclamation will be
exercised only by the Metrocom, CMA, CIS, and "officers
occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall be
accorded fair and humane treatment; and that members of the
detainee's immediate family shall be allowed to visit him twice
a week;
3. A memorandum of the Department of National Defense,
dated September 2, 1971, directing the Chief of the
Constabulary to establish appropriate Complaints and Action
Bodies/Groups to prevent and/or check any abuses in
connection with the suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a
Presidential Administrative Assistance Committee to hear
complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners
Vicente Ilao and Juan Carandang had been released from
custody on August 31, 1971, "after it had been found that the
evidence against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents
therein traversed some allegations of fact and conclusions of
law made in the petition therein and averred that Antolin Oreta,
Jr., the petitioner therein, had been and is detained "on the
basis of a reasonable ground to believe that he has committed
overt acts in furtherance of rebellion or insurrection against the
government" and, accordingly, "comes within the class of
persons as to whom the privilege of the writ of habeas
corpus has been suspended by Proclamation No. 889, as
amended," the validity of which is not contested by him.
On August 30, 1971, the President issued Proclamation No.
889-A, amending Proclamation No. 889, so as to read as
follows:
WHEREAS, on the basis of carefully
evaluated information, it is definitely
established that lawless elements in the
country, which are moved by common or
similar ideological conviction, design and
FINALS CONSTITUTION I ACJUCO 217

goal and enjoying the active moral and privilege of the writ of habeas corpus for
material support of a foreign power and the persons presently detained, as well as
being guided and directed by a well- all others who may be hereafter similarly
trained, determined and ruthless group of detained for the crimes of insurrection or
men and taking advantage of our rebellion [,] and [all] other [crimes and
constitutional liberties to promote and offenses] overt acts committed by them in
attain their ends, have entered into a furtherance [or on the occasion] thereof[,].
conspiracy and have in fact joined and [or incident thereto, or in connection
banded their forces together for the therewith.]1
avowed purpose of [actually] staging,
undertaking, [and] wagging and On September 1, 1971, Cases Nos. L-33964, L-33965, L-
are actually engaged in an armed 33973 and L-33982 were jointly heard and then the parties
insurrection and rebellion in order to
therein were allowed to file memoranda, which were submitted
forcibly seize political power in this country, from September 3 to September 9, 1971.
overthrow the duly constituted government,
and supplant our existing political, social,
economic and legal order with an entirely Soon thereafter, or on September 18, 1971, Proclamation No.
new one whose form of government, 889 was further amended by Proclamation No. 889-B, lifting
whose system of laws, whose conception the suspension of the privilege of the writ of habeas corpus in
of God and religion, whose notion of the following provinces, sub-provinces and cities of the
individual rights and family relations, and Philippine, namely:
whose political, social and economic
precepts are based on the Marxist-Leninist- A. PROVINCES:
Maoist teaching and beliefs;
1. Batanes 15. Negros
WHEREAS, these lawless elements, acting Occ.
in concert through front organizations that 2. Ilocos Norte 16.
are seemingly innocent and harmless, Negros Or.
have continuously and systematically 3. Ilocos Sur 17. Cebu
strengthened and broadened their 4. Abra 18. Bohol
memberships through sustained and 5. Abra 19. Capiz
careful recruiting and enlistment of new 6. Pangasinan 20.
adherents from among our peasantly, Aklan
laborers, professionals, intellectuals, 7. Batangas 21.
students, and mass media personnel, and Antique
through such sustained and careful 8. Catanduanes 22.
recruitment and enlistment have Iloilo
succeeded in infiltrating almost every 9. Masbate 23. Leyte
segment of our society in their ceaseless 10. Romblon 24. Leyte
determination to erode and weaken the del Sur
political, social, economic and moral 11. Marinduque 25.
foundations of our existing government and Northern Samar
influence many peasant, labor, 12. Or. Mindoro 26.
professional, intellectual, student and mass Eastern Samar
media organizations to commit acts of 13. Occ. Mindoro 27.
violence and depredations against our duly Western Samar
constituted authorities, against the 14. Palawan.
members of our law enforcement agencies,
and worst of all, against the peaceful
members of our society; B. SUB-PROVINCES:

WHEREAS, these lawless elements, by 1. Guimaras 3. Siquior

their acts of rebellion and insurrection, 2. Biliran
have created a state of lawlessness and
disorder affecting public safety and security C. CITIES:
of the State, the latest manifestation of
which has been the dastardly attack on the
Liberal Party rally in Manila on August 21, 1. Laog 10. Bacolod
1971, which has resulted in the death and 2. Dagupan 11. Bago
serious injury of scores of persons; 3. San Carlos 12.
Canlaon
4. Batangas 13. La
WHEREAS, public safety requires that Carlota
immediate and effective action be taken in 5. Lipa 14. Bais
order to maintain peace and order, secure 6. Puerto Princesa 15.
the safety of the people and preserve the Dumaguete
authority of the State; 7. San Carlos (Negros
16. Iloilo
NOW THEREFORE, I, FERDINAND E. Occ.) 17. Roxas
MARCOS, President of the Philippines, by 8. Cadiz 18. Tagbilaran
virtue of the powers vested upon me by 9. Silay 19. Lapu-lapu
Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the 20. Cebu 24. Tacloban
FINALS CONSTITUTION I ACJUCO 218

21. Mandaue 25. 3. Bulacan 13.

Ormoc Pampanga
22. Danao 26. 4. Camarines Sur 14.
Calbayog Quezon
23. Toledo 5. Ifugao 15. Rizal
6. Isabela 16. South
On September 25, 1971, the President issued Proclamation Cotabato
No. 889-C, restoring the privilege of the writ in the following 7. Laguna 17. Tarlac
provinces and cities: 8. Lanao del Norte 18.
Zambales
9. Lanao del Norte
A. PROVINCES:
B. SUB-PROVINCES:
1. Surigao del Norte 8.
Agusan del Sur
2. Surigao del Sur 9. 1. Aurora 2. Quirino
Misamis Or.
3. Davao del Norte 10. C. CITIES:
Misamis Occ.
4. Davao del Sur 11. 1. Angeles 10. Manila
Zamboanga del Norte 2. Baguio 11. Marawi
5. Davao Oriental 12. 3. Cabanatuan 12.
Basilan Naga
6. Bukidnon 13. 4. Caloocan 13.
Pagadian Olongapo
7. Agusan del Norte
5. Cotabato 14.
Palayan
B. CITIES: 6. General Santos 15.
Pasay
1. Surigao 8. Tangub 7. Iligan 16. Quezon
2. Davao 9. Dapitan 8 Iriga 17. San Jose
9 Lucena 18. San Pablo
3. Butuan 10. Dipolog
4. Cagayan 11.
Zamboanga The first major question that the Court had to consider was
5. Gingoong 12. whether it would adhere to the view taken in Barcelon v.
Basilan Baker,2 and reiterated in Montenegro v. Castañeda,3 pursuant
6. Ozamiz 13. to which, "the authority to decide whether the exigency has
Pagadian. arisen requiring suspension (of the privilege of the writ
7. Oroquieta of habeas corpus) belongs to the President and his 'decision is
final and conclusive' upon the courts and upon all other
On October 4, 1971, the suspension of the privilege was further persons." Indeed, had said question been decided in the
lifted by Proclamation No. 889-D, in the following places: affirmative the main issue in all of these cases, except
L-34339, would have been settled, and, since the other issues
were relatively of minor importance, said cases could have
A. PROVINCES: been readily disposed of. Upon mature deliberation, a majority
of the Members of the Court had, however, reached, although
1. Cagayan 5. tentatively, a consensus to the contrary, and decided that the
Camarines Court had authority to and should inquire into the existence of
2. Cavite 6. Albay the factual bases required by the Constitution for the
3. Mountain Province 7. suspension of the privilege of the writ; but before proceeding
Sorsogon to do so, the Court deemed it necessary to hear the parties on
4. Kalinga-Apayao the nature and extent of the inquiry to be undertaken, none of
them having previously expressed their views thereof.
Accordingly, on October 5, 1971, the Court issued, in L-33964,
B. CITIES: L-33965, L-33973 and L-33982, a resolution stating in part that
—
1. Cavite City 3. Trece
Martires ... a majority of the Court having tentatively
2. Tagaytay 4. Legaspi arrived at a consensus that it may inquire in
order to satisfy itself of the existence of the
As a consequences, the privilege of the writ of habeas factual bases for the issuance of
corpus is still suspended in the following eighteen (18) Presidential Proclamations Nos. 889 and
provinces, two (2) sub-provinces and eighteen (18) cities, to 889-A (suspending the privilege of the writ
wit: of habeas corpus for all persons detained
or to be detained for the crimes of rebellion
or insurrection throughout the Philippines,
A. PROVINCE: which area has lately been reduced to
some eighteen provinces, two
1. Bataan 10. North subprovinces and eighteen cities with the
Cotabato partial lifting of the suspension of the
2. Benguet 11. Nueva privilege effected by Presidential
Ecija Proclamations Nos. 889-B, 889-C and 889-
FINALS CONSTITUTION I ACJUCO 219
D) and thus determine the constitutional
sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14,
and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering
that the members of the Court are not
agreed on the precise scope and nature of
the inquiry to be made in the premises,
even as all of them are agreed that the
Presidential findings are entitled to great
respect, the Court RESOLVED that these
cases be set for rehearing on October 8,
1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard,
once again, but, this time jointly with cases Nos. L-34004, L-
34013, and L-34039, and the parties were then granted a
period to file memoranda, in amplification of their respective
oral arguments, which memoranda were submitted from
October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on
September 1 and October 8, 1971, their willingness to impart
to the Court classified information relevant to these cases,
subject to appropriate security measures, the Court met at
closed doors, on October 28 and 29, 1971, and, in the
presence of three (3) attorneys for the petitioners, chosen by
the latter, namely, Senator Jose W. Diokno, Senator Salvador
H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor
General and two (2) members of his staff, was briefed, by Gen.
Manuel Yan, Chief of Staff of the Armed Forces of the
Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen.
Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge
Advocate General, JAGS (GSC), and other ranking officers of
said Armed Forces, on said classified information, most of
which was contained in reports and other documents already
attached to the records. During the proceedings, the members
of the Court, and, occassionally, counsel for the petitioners,
propounded pertinent questions to said officers of the Armed
Forces. Both parties were then granted a period of time within
which to submit their respective observations, which were filed
on November 3, 1971, and complemented by some documents
attached to the records on November 6, 1971, and a summary,
submitted on November 15, 1971, of the aforesaid classified
information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339
(Olivar) had been filed and the parties therein were heard in
oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed
manifestations — motions stating that on November 13, 1971,
the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal
complaint filed therefor, with a violation of Republic Act No.
1700 (Anti-Subversion Act), in the City Fiscal's Office of
Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-
22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal
complaint filed therefor, of a violation of section 4 of Republic
Act No. 1700 (Anti-Subversion Act), in the Court of First
Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-
33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No.
889, as amended, and praying that the petitions in G.R. Nos.
L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be
dismissed, without prejudice to the resolution of the remaining
cases. Copy of the criminal complaint filed, as above stated,
with the Court of First Instance of Rizal and docketed therein
as Criminal Case No. Q-1623 of said court — which was
appended to said manifestations-motions of the respondent as
Annex 2 thereof — shows that Gary Olivar, the petitioner in L-
34339, is one of the defendants in said case.
Required to comment on said manifestations-motions,
Luzvimindo David, petitioner in L-33973, in his comment dated
November 23, 1971, urged the Court to rule on the merits of
the petitions in all of these cases, particularly on the
constitutionality of Presidential Proclamation No. 889, as
amended, upon the ground that he is still detained and that the
main issue is one of public interest involving as it does the civil
liberties of the people. Angelo de los Reyes, one of the
petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit
the petitions in L-33982 and L-34004 have been filed,
maintained that the issue in these cases is not moot, not even
for the detainees who have been released, for, as long as the
privilege of the writ remains suspended, they are in danger of
being arrested and detained again without just cause or valid
reason. In his reply, dated and filed on November 29, 1971, the
Solicitor General insisted that the release of the above-named
petitioners rendered their respective petitions moot and
academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265,
question the formal validity of the proclamation suspending the
privilege of the writ of habeas corpus. In this connection, it
should be noted that, as originally formulated, Proclamation
No. 889 was contested upon the ground that it did not comply
with the pertinent constitutional provisions, namely, paragraph
(14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas
corpus shall not be suspended except in
cases of invasion, insurrection, or rebellion,
when the public safety requires it, in any
way of which events the same may be
suspended wherever during such period
the necessity for such suspension shall
exist.
and paragraph (2), section 10, Article VII of the same
instrument, which provides that:
FINALS CONSTITUTION I ACJUCO 220
The President shall be commander-in-chief
of all armed forces of the Philippines, and
whenever it becomes necessary, he may
call out such armed forces to prevent or
suppress lawless violence, invasion,
insurrection, or rebellion. In case of
invasion, insurrection, or rebellion, or
imminent danger thereof when the public
safety requires it, he may suspend the
privileges of the writ of habeas corpus, or
place the Philippines or any part thereof
under martial law.
Regardless of whether or not the President may suspend the
privilege of the writ of habeas corpus in case of "imminent
danger" of invasion, insurrection or rebellion — which is one of
the grounds stated in said paragraph (2), section 10 of Art. VII
of the Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights — petitioners maintained that
Proclamation No. 889 did not declare the existence
of actual "invasion insurrection or rebellion or imminent danger
thereof," and that, consequently, said Proclamation was
invalid. This contention was predicated upon the fact that,
although the first "whereas" in Proclamation No. 889 stated
that "lawless elements" had "entered into a conspiracy and
have in fact joined and banded their forces together for
the avowed purpose of actually staging, undertaking and
waging an armed insurrection and rebellion," the actuality so
alleged refers to the existence, not of an uprising that
constitutes the essence of a rebellion or insurrection, but of
the conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been
rendered moot and academic by Proclamation No. 889-A,
issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said
Proclamation No. 889-A amended, inter alia, the first
"whereas" of the original proclamation by postulating the said
lawless elements "have entered into a conspiracy and have in
fact joined and banded their forces together for the avowed
purpose of staging, undertaking, waging and are actually
engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political,
social, economic and legal order with an entirely new one ...."
Moreover, the third "whereas" in the original proclamation was,
likewise, amended by alleging therein that said lawless
elements, "by their acts of rebellion and insurrection," have
created a state of lawlessness and disorder affecting public
safety and the security of the State. In other words, apart from
adverting to the existence of actual conspiracy and of
the intent to rise in arms to overthrow the government,
Proclamation No. 889-A asserts that the lawless elements
"are actually engaged in an armed insurrection and rebellion"
to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor
of the original proclamation and particularly, the circumstances
under which it had been issued, clearly suggest the intent to
aver that there was and is, actually, a state of rebellion in the
Philippines, although the language of said proclamation was
hardly a felicitous one, it having in effect, stressed the actuality
of the intent to rise in arms, rather than of the factual existence
of the rebellion itself. The pleadings, the oral arguments and
the memoranda of respondents herein have consistently and
abundantly emphasized — to justify the suspension of the
privilege of the writ of habeas corpus — the acts of violence
and subversion committed prior to August 21, 1971, by the
lawless elements above referred to, and the conditions
obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-A
has superseded the original proclamation and that the flaws
attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the
proclamation, as amended. Pursuant to the above-quoted
provisions of the Constitution, two (2) conditions must concur
for the valid exercise of the authority to suspend the privilege
to the writ, to wit: (a) there must be "invasion, insurrection, or
rebellion" or — pursuant to paragraph (2), section 10 of Art. VII
of the Constitution — "imminent danger thereof," and (b)
"public safety" must require the suspension of the privilege.
The Presidential Proclamation under consideration declares
that there has been and there is actually a state of rebellion
and
that4 "public safety requires that immediate and effective action
be taken in order to maintain peace and order, secure the
safety of the people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents
maintain that they are, upon the authority of Barcelon v.
Baker5 and Montenegro v. Castañeda.6 Upon the other hand,
petitioners press the negative view and urge a reexamination
of the position taken in said two (2) cases, as well as a reversal
thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by
two (2) factors, namely: (a) it relied heavily upon Martin v.
Mott7 involving the U.S. President's power to call out the
militia, which — he being the commander-in-chief of all the
armed forces — may be exercised to suppress or prevent any
lawless violence, even without invasion, insurrection or
rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of the
writ of habeas corpus, jeopardizing as the latter does individual
liberty; and (b) the privilege had been suspended by the
American Governor-General, whose act, as representative of
the Sovereign, affecting the freedom of its subjects, can hardly
be equated with that of the President of the Philippines dealing
with the freedom of the Filipino people, in whom sovereignty
resides, and from whom all government authority emanates.
The pertinent ruling in the Montenegro case was based mainly
upon the Barcelon case, and hence, cannot have more weight
than the same. Moreover, in the Barcelon case, the Court held
that it could go into the question: "Did the Governor-General"
— acting under the authority vested in him by the Congress of
the United States, to suspend the privilege of the writ of habeas
corpus under certain conditions — "act in conformance with
such authority?" In other words, it did determine whether or not
the Chief Executive had acted in accordance with law.
Similarly, in the Montenegro case, the Court held that petitioner
therein had "failed to overcome the presumption of correctness
which the judiciary accords to acts of the Executive ...." In
short, the Court considered the question whether or not there
really was are rebellion, as stated in the proclamation therein
contested.
Incidentally, even the American jurisprudence is neither explicit
nor clear on the point under consideration. Although some
cases8 purport to deny the judicial power to "review" the
findings made in the proclamations assailed in said cases, the
tenor of the opinions therein given, considered as a whole,
strongly suggests the court's conviction that the conditions
essential for the validity of said proclamations or orders were,
in fact, present therein, just as the opposite view taken in other
cases9 had a backdrop permeated or characterized by the
belief that said conditions were absent. Hence, the dictum of
Chief Justice Taney to the effect that "(e)very case must
depend on its own circumstances." 10 One of the important, if
not dominant, factors, in connection therewith, was intimated
in Sterling v. Constantin, 11 in which the Supreme Court of the
United States, speaking through Chief Justice Hughes,
declared that:
FINALS CONSTITUTION I ACJUCO 221
.... When there is a substantial showing
that the exertion of state power has
overridden private rights secured by that
Constitution, the subject is necessarily one
for judicial inquiry in an appropriate
proceeding directed against the individuals
charged with the transgression. To such a
case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court
has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority
of the Court" had "tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual
bases for the issuance of Presidential Proclamations Nos. 889
and 889-A ... and thus determine the constitutional sufficiency
of such bases in the light of the requirements of Article III, sec.
1, par. 14, and Article VII, sec. 10, par 2, of the Philippine
Constitution...." Upon further deliberation, the members of the
Court are now unanimous in the conviction that it has the
authority to inquire into the existence of said factual bases in
order to determine the constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the
Executive Department, is limited and conditional. The precept
in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in
the negative, evidently to stress its importance, by providing
that "(t)he privilege of the writ of habeas corpus shall not be
suspended ...." It is only by way of exception that it permits the
suspension of the privilege "in cases of invasion, insurrection,
or rebellion" — or, under Art VII of the Constitution, "imminent
danger thereof" — "when the public safety requires it, in any of
which events the same may be suspended wherever during
such period the necessity for such suspension shall
exist." 13 For from being full and plenary, the authority to
suspend the privilege of the writ is thus circumscribed, confined
and restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as regards the
time when and the place where it may be exercised. These
factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of
said power, beyond which it does not exist. And, like the
limitations and restrictions imposed by the Fundamental Law
upon the legislative department, adherence thereto and
compliance therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise, the explicit constitutional
provisions thereon would be meaningless. Surely, the framers
of our Constitution could not have intended to engage in such
a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear
in mind that our political system is essentially democratic and
republican in character and that the suspension of the privilege
affects the most fundamental element of that system, namely,
individual freedom. Indeed, such freedom includes and
connotes, as well as demands, the right of every single
member of our citizenry to freely discuss and dissent from, as
well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or
not. The untrammelled enjoyment and exercise of such right —
which, under certain conditions, may be a civic duty of the
highest order — is vital to the democratic system and essential
to its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected by
our Basic Law is one enjoyed and exercised, not in derogation
thereof, but consistently therewith, and, hence, within the
framework of the social order established by the Constitution
and the context of the Rule of Law. Accordingly, when
individual freedom is used to destroy that social order, by
means of force and violence, in defiance of the Rule of Law —
such as by rising publicly and taking arms against the
government to overthrow the same, thereby committing the
crime of rebellion — there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned guarantee
or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must be
forewarned against mistaking mere dissent — no matter how
emphatic or intemperate it may be — for dissidence amounting
to rebellion or insurrection, the Court cannot hesitate, much
less refuse — when the existence of such rebellion or
insurrection has been fairly established or cannot reasonably
be denied — to uphold the finding of the Executive thereon,
without, in effect, encroaching upon a power vested in him by
the Supreme Law of the land and depriving him, to this extent,
of such power, and, therefore, without violating the Constitution
and jeopardizing the very Rule of Law the Court is called upon
to epitomize.
As heretofore adverted to, for the valid suspension of the
privilege of the writ: (a) there must be "invasion, insurrection or
rebellion" or — pursuant to paragraph (2), section 10 of Art. VII
of the Constitution — "imminent danger thereof"; and (b) public
safety must require the aforementioned suspension. The
President declared in Proclamation No. 889, as amended, that
both conditions are present.
As regards the first condition, our jurisprudence 14 attests
abundantly to the Communist activities in the Philippines,
especially in Manila, from the late twenties to the early thirties,
then aimed principally at incitement to sedition or rebellion, as
the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to
have waned notably; but, the outbreak of World War II in the
Pacific and the miseries, the devastation and havoc, and the
proliferation of unlicensed firearms concomitant with the
military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the
Communist threat, with such vigor as to be able to organize
and operate in Central Luzon an army — called
HUKBALAHAP, during the occupation, and renamed Hukbong
Mapagpalaya ng Bayan (HMP) after liberation — which
clashed several times with the armed forces of the Republic.
This prompted then President Quirino to issue Proclamation
No. 210, dated October 22, 1950, suspending the privilege of
the writ of habeas corpus, the validity of which was upheld
in Montenegro v. Castañeda. 15 Days before the promulgation
of said Proclamation, or on October 18, 1950, members of the
Communist Politburo in the Philippines were apprehended in
Manila. Subsequently accused and convicted of the crime of
rebellion, they served their respective sentences. 16
The fifties saw a comparative lull in Communist activities,
insofar as peace and order were concerned. Still, on June 20,
1957, Rep. Act No. 1700, otherwise known as the Anti-
Subversion Act, was approved, upon the ground — stated in
the very preamble of said statute — that.
... the Communist Party of the Philippines,
although purportedly a political party, is in
fact an organized conspiracy to overthrow
the Government of the Republic of the
Philippines, not only by force and violence
but also by deceit, subversion and other
illegal means, for the purpose of
establishing in the Philippines a totalitarian
FINALS CONSTITUTION I ACJUCO 222

regime subject to alien domination and
control;
... the continued existence and activities of
the Communist Party of the Philippines
constitutes a clear,
present and grave danger to the security of
the Philippines; 17 and
... in the face of the organized, systematic
and persistent subversion, national in
scope but international in direction, posed
by the Communist Party of the Philippines
and its activities, there is urgent need for
special legislation to cope with this
continuing menace to the freedom and
security of the country....
In the language of the Report on Central Luzon, submitted, on
September 4, 1971, by the Senate Ad Hoc Committee of
Seven — copy of which Report was filed in these cases by the
petitioners herein —
In the year 1969, the NPA had — according to the records of
the Department of National Defense — conducted raids,
resorted to kidnappings and taken part in other violent
incidents numbering over 230, in which it inflicted 404
casualties, and, in turn, suffered 243 losses. In 1970, its
records of violent incidents was about the same, but the NPA
casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists,
whether they belong to the traditional group or to the Maoist
faction, believe that force and violence are indispensable to the
attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on
the means to be used at a given time and in a particular place;
and (b) there is a New People's Army, other, of course, that the
arm forces of the Republic and antagonistic thereto. Such New
People's Army is per se proof of the existence of a rebellion,
especially considering that its establishment was announced
publicly by the reorganized CPP. Such announcement is in the
nature of a public challenge to the duly constituted authorities
and may be likened to a declaration of war, sufficient to
establish a war status or a condition of belligerency, even
before the actual commencement of hostilities.

The years following 1963 saw the
successive emergence in the country of
several mass organizations, notably the
Lapiang Manggagawa (now the Socialist
Party of the Philippines) among the
workers; the Malayang Samahan ng mga
Magsasaka (MASAKA) among the
peasantry; the Kabataang Makabayan
(KM) among the youth/students; and the
Movement for the Advancement of
Nationalism (MAN) among
intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence
and utilize these organizations in promoting
its radical brand
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been
split into two (2) groups, one of which — composed mainly of
young radicals, constituting the Maoist faction — reorganized
the Communist Party of the Philippines early in 1969 and
established a New People's Army. This faction adheres to the
Maoist concept of the "Protracted People's War" or "War of
National Liberation." Its "Programme for a People's Democratic
Revolution" states, inter alia:
We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to
overthrow the government and have thus been and still are
engaged in rebellion against the Government of the
Philippines.
In fact, the thrust of petitioners' argument is that the New
People's Army proper is too small, compared with the size of
the armed forces of the Government, that the Communist
the rebellion or insurrection cannot so endanger public safety as to
require the suspension of the privilege of the writ of habeas
corpus. This argument does not negate, however, the
existence of a rebellion, which, from the constitutional and
statutory viewpoint, need not be widespread or attain the
of
magnitude of a civil war. This is apparent from the very
provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of
the Philippines, and, also, from paragraph (14) of section 1,
Article III of the Constitution, authorizing the suspension of the
privilege of the writ "wherever" — in case of rebellion — "the
necessity for such suspension shall exist." In fact, the case of
Barcelon v. Baker referred to a proclamation suspending the
privilege in the provinces of Cavite and Batangas only. The
case of In re Boyle 21involved a valid proclamation suspending
the privilege in a smaller area — a country of the state of Idaho.

The Communist Party of the Philippines is
determined to implement its general
programme for a people's democratic
revolution. All Filipino communists are
ready to sacrifice their lives for the worthy
cause of achieving the new type of
democracy, of building a new Philippines
that is genuinely and completely
independent, democratic, united, just and
prosperous ...
xxx xxx xxx
The central task of any revolutionary
movement is to seize political power. The
Communist Party of the Philippines
assumes this task at a time that both the
international and national situations are
favorable of asking the road of armed
revolution ... 19
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the
privilege — namely, that the suspension be required by public
safety. Before delving, however, into the factual bases of the
presidential findings thereon, let us consider the precise nature
of the Court's function in passing upon the validity of
Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more,
it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he
acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested
in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
FINALS CONSTITUTION I ACJUCO 223
In the exercise of such authority, the function of the Court is
merely to check — not to supplant 22 — the Executive, or to
ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act. To be sure,
the power of the Court to determine the validity of the contested
proclamation is far from being identical to, or even comparable
with, its power over ordinary civil or criminal cases elevated
thereto by ordinary appeal from inferior courts, in which cases
the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of
checks and balances, the judicial authority to review decisions
of administrative bodies or agencies is much more limited, as
regards findings of fact made in said decisions. Under the
English law, the reviewing court determines only whether there
is some evidentiary basis for the contested administrative
findings; no quantitative examination of the supporting
evidence is undertaken. The administrative findings can be
interfered with only if there is no evidence whatsoever in
support thereof, and said finding is, accordingly, arbitrary,
capricious and obviously unauthorized. This view has been
adopted by some American courts. It has, likewise, been
adhered to in a number of Philippine cases. Other cases,
in bothjurisdictions, have applied the "substantial evidence"
rule, which has been construed to mean "more than a mere
scintilla" or "relevant evidence as a reasonable mind might
accept as adequate to support a conclusion," 23 even if other
minds equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of quasi-
judicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid
form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ
of habeas corpus, for, as a general rule, neither body takes
evidence — in the sense in which the term is used in judicial
proceedings — before enacting a legislation or suspending the
writ. Referring to the test of the validity of a statute, the
Supreme Court of the United States, speaking through Mr.
Justice Roberts, expressed, in the leading case of Nebbia v.
New York, 24 the view that:
... If the laws passed are seen to have
a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor
discriminatory, the requirements of due
process are satisfied, and judicial
determination to that effect renders a court
functus officio ... With the wisdom of the
policy adopted, with the adequacy or
practically of the law enacted to forward it,
the courts are
both incompetent and unauthorized to deal
...
Relying upon this view, it is urged by the Solicitor General —
... that judicial inquiry into the basis of the
questioned proclamation can go no
further than to satisfy the Court not that the
President's decision is correct and that
public safety was endanger by the rebellion
and justified the suspension of the writ, but
that in suspending the writ, the President
did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection
of such test. Indeed, the co-equality of coordinate branches of
the Government, under our constitutional system, seems to
demand that the test of the validity of acts of Congress and of
those of the Executive be, mutatis mutandis, fundamentally the
same. Hence, counsel for petitioner Rogelio Arienda admits
that the proper standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the
writ of habeas corpus decreed in Proclamation No. 889, as
amended? Petitioners submit a negative answer upon the
ground: (a) that there is no rebellion; (b) that, prior to and at the
time of the suspension of the privilege, the Government was
functioning normally, as were the courts; (c) that no untoward
incident, confirmatory of an alleged July-August Plan, has
actually taken place after August 21, 1971; (d) that the
President's alleged apprehension, because of said plan, is
non-existent and unjustified; and (e) that the Communist forces
in the Philippines are too small and weak to jeopardize public
safety to such extent as to require the suspension of the
privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is
obvious, so much so that counsel for several petitioners herein
have admitted it.
With respect to the normal operation of government, including
courts, prior to and at the time of the suspension of the
privilege, suffice it to say that, if the conditions were such that
courts of justice no longer functioned, a suspension of the
privilege would have been unnecessary, there being no courts
to issue the writ of habeas corpus. Indeed, petitioners'
reference to the normal operation of courts as a factor
indicative of the illegality of the contested act of the Executive
stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation
therein decreed of said act of the Executive. Said cases
involved, however, the conviction by military courts of
members of the civilian population charged
with common crimes. It was manifestly, illegal for military
courts to assume jurisdiction over civilians so charged, when
civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after
August 21, 1971, does not necessarily bear out petitioners'
view. What is more, it may have been due precisely to the
suspension of the privilege. To be sure, one of its logical effects
is to compel those connected with the insurrection or rebellion
to go into hiding. In fact, most of them could not be located by
the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as
incredible, upon the theory that, according to Professor Egbal
Ahman of Cornell University, "guerrilla use of terror ... is
sociological and psychologically selective," and that the
indiscriminate resort to terrorism is bound to boomerang, for it
tends to alienate the people's symphaty and to deprive the
dissidents of much needed mass support. The fact, however,
is that the violence used is some demonstrations held in Manila
in 1970 and 1971 tended to terrorize the bulk of its inhabitants.
It would have been highly imprudent, therefore, for the
Executive to discard the possibility of a resort to terrorism, on
a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the
effect that the New People's Army of the Communist Party of
the Philippines is too small to pose a danger to public safety of
such magnitude as to require the suspension of the privilege
of the writ of habeas corpus. The flaw in petitioners' stand
becomes apparent when we consider that it assumes that the
Armed Forces of the Philippines have no other task than to
fight the New People's Army, and that the latter is the only
threat — and a minor one — to our security. Such assumption
is manifestly erroneous.
FINALS CONSTITUTION I ACJUCO 224
The records before Us show that, on or before August 21,
1971, the Executive had information and reports —
subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee of
Seven 25 — to the effect that the Communist Party of the
Philippines does not merely adhere to Lenin's idea of a swift
armed uprising; that it has, also, adopted Ho Chi Minh's
terrorist tactics and resorted to the assassination of
uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful
bombing incidents in the Greater Manila Area in 1970; that the
Constitutional Convention Hall was bombed on June 12, 1971;
that, soon after the Plaza Miranda incident, the NAWASA main
pipe, at the Quezon City-San Juan boundary, was bombed;
that this was followed closely by the bombing of the Manila City
Hall, the COMELEC building, the Congress Building and the
MERALCO substation at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and
Congressman Eduardo Cojuangco were, likewise, bombed, as
were the MERALCO main office premises, along Ortigas
Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in
Caloocan City.
Petitioners, similarly, fail to take into account that — as per said
information and reports — the reorganized Communist Party
of the Philippines has, moreover, adopted Mao's concept of
protracted people's war, aimed at the paralyzation of the will to
resist of the government, of the political, economic and
intellectual leadership, and of the people themselves; that
conformably to such concept, the Party has placed special
emphasis upon a most extensive and intensive program of
subversion by the establishment of front organizations in urban
centers, the organization of armed city partisans and the
infiltration in student groups, labor unions, and farmer and
professional groups; that the CPP has managed to infiltrate or
establish and control nine (9) major labor organizations; that it
has exploited the youth movement and succeeded in making
Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests,
among which are the Malayang Samahan ng Magsasaka
(MASAKA), the Kabataang Makabayan (KM), the Movement
for the Advancement of Nationalism (MAN), the Samahang
Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP);
that, as of August, 1971, the KM had two hundred forty-five
(245) operational chapters throughout the Philippines, of which
seventy-three (73) were in the Greater Manila Area, sixty (60)
in Northern Luzon, forty-nine (49) in Central Luzon, forty-two
(42) in the Visayas and twenty-one (21) in Mindanao and Sulu;
that in 1970, the Party had recorded two hundred fifty-eight
(258) major demonstrations, of which about thirty-three (33)
ended in violence, resulting in fifteen (15) killed and over five
hundred (500) injured; that most of these actions were
organized, coordinated or led by the aforementioned front
organizations; that the violent demonstrations were generally
instigated by a small, but well-trained group of armed agitators;
that the number of demonstrations heretofore staged in 1971
has already exceeded those of 1970; and that twenty-four (24)
of these demonstrations were violent, and resulted in the death
of fifteen (15) persons and the injury of many more.
Subsequent events — as reported — have also proven that
petitioners' counsel have underestimated the threat to public
safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6)
encounters and staged one (1) raid, in consequence of which
seven (7) soldiers lost their lives and two (2)others were
wounded, whereas the insurgents suffered five (5) casualties;
that on August 26, 1971, a well-armed group of NPA, trained
by defector Lt. Victor Corpus, attacked the very command port
of TF LAWIN in Isabela, destroying two (2) helicopters and one
(1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed
and three (3) wounded on the side of the Government, one (1)
BSDU killed and three (3) NPA casualties; that in an encounter
at Botolan, Zambales, one (1) KM-SDK leader, an unidentified
dissident, and Commander Panchito, leader of the dissident
group were killed; that on August 26, 1971, there was an
encounter in the barrio of San Pedro. Iriga City, Camarines
Sur, between the PC and the NPA, in which a PC and two (2)
KM members were killed; that the current disturbances in
Cotabato and the Lanao provinces have been rendered more
complex by the involvement of the CPP/NPA, for, in mid-1971,
a KM group, headed by Jovencio Esparagoza, contacted the
Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of
Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP and its front
organizations are, according to intelligence findings, definitely
capable of preparing powerful explosives out of locally
available materials; that the bomb used in the Constitutional
Convention Hall was a "clay-more" mine, a powerful explosive
device used by the U.S. Army, believed to have been one of
many pilfered from the Subic Naval Base a few days before;
that the President had received intelligence information to the
effect that there was a July-August Plan involving a wave of
assassinations, kidnappings, terrorism and mass destruction
of property and that an extraordinary occurence would signal
the beginning of said event; that the rather serious condition of
peace and order in Mindanao, particularly in Cotabato and
Lanao, demanded the presence therein of forces sufficient to
cope with the situation; that a sizeable part of our armed forces
discharge other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country,
particularly Manila and its suburbs, the Cagayan Valley,
Ifugao, Zambales, Laguna, Quezon and Bicol Region, required
that the rest of our armed forces be spread thin over a wide
area.
Considering that the President was in possession of the above
data — except those related to events that happened after
August 21, 1971 — when the Plaza Miranda bombing took
place, the Court is not prepared to hold that the Executive had
acted arbitrarily or gravely abused his discretion when he then
concluded that public safety and national security required the
suspension of the privilege of the writ, particularly if the NPA
were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all
over the Philippines, with the assistance and cooperation of the
dozens of CPP front organizations, and the bombing or water
mains and conduits, as well as electric power plants and
installations — a possibility which, no matter how remote, he
was bound to forestall, and a danger he was under obligation
to anticipate and arrest.
He had consulted his advisers and sought their views. He had
reason to feel that the situation was critical — as, indeed, it
was — and demanded immediate action. This he took
believing in good faith that public safety required it. And, in the
light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no
authority to suspend the privilege in the entire Philippines, even
if he may have been justified in doing so in some provinces or
cities thereof. At the time of the issuance of Proclamation No.
889, he could not be reasonably certain, however, about the
placed to be excluded from the operation of the proclamation.
He needed some time to find out how it worked, and as he did
FINALS CONSTITUTION I ACJUCO 225
so, he caused the suspension to be gradually lifted, first, on
September 18, 1971, in twenty-seven (27) provinces, three (3)
sub-provinces and twenty six (26) cities; then, on September
25, 1971, in order fourteen (14) provinces and thirteen (13)
cities; and, still later, on October 4, 1971, in seven (7)
additional provinces and four (4) cities, or a total of forty-eight
(48) provinces, three (3) sub-provinces and forth-three (43)
cities, within a period of forty-five (45) days from August 21,
1971.
Neither should We overlook the significance of another fact.
The President could have declared a general suspension of
the privilege. Instead, Proclamation No. 889 limited the
suspension to persons detained "for crimes of insurrection or
rebellion, and all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident
thereto, or in connection therewith." Even this was further
limited by Proclamation No. 889-A, which withdrew from the
coverage of the suspension persons detained for other crimes
and offenses committed "on the occasion" of the insurrection
or rebellion, or "incident thereto, in or connection therewith." In
fact, the petitioners in L-33964, L-33982 and L-34004 concede
that the President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent
danger thereof, the President has, under the Constitution,
three (3) courses of action open to him, namely: (a) to call out
the armed forces; (b) to suspend the privilege of the writ
of habeas corpus; and (c) to place the Philippines or any part
thereof under martial law. He had, already, called out the
armed forces, which measure, however, proved inadequate to
attain the desired result. Of the two (2)other alternatives, the
suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President
has acted arbitrary in issuing Proclamation No. 889, as
amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners
herein are covered by said Proclamation, as amended. In other
words, do petitioners herein belong to the class of persons as
to whom privilege of the writ of habeas corpus has been
suspended?
In this connection, it appears that Bayani Alcala, one of the
petitioners in L-33964, Gerardo Tomas, petitioner in L-34004,
and Reynaldo Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" — meaning,
perhaps, without any intention to prosecute them — upon the
ground that, although there was reasonable ground to believe
that they had committed an offense related to subversion, the
evidence against them is insufficient to warrant their
prosecution; that Teodosio Lansang, one of the petitioners in
L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio
Prudente, petitioner in L-33982, Filomeno de Castro and
Barcelisa C. de Castro, for whose benefit the petition in L-
34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265,
were, on said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and
L-33973, as well as Luzvimindo David, petitioner in L-33973,
and Gary Olivar, petitioner in L-34339, are still under detention
and, hence, deprived of their liberty, they — together with over
forty (40) other persons, who are at large — having been
accused, in the Court of First Instance of Rizal, of a violation of
section 4 of Republic Act No. 1700 (Anti-Subversion Act); and
that Angelo delos Reyes and Teresito Sison, intervenors in
said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged
— together with over fifteen (15) other persons, who are, also,
at large — with another violation of said Act, in a criminal
complaint filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang — petitioners
in L-33965 — who were released as early as August 31, 1971,
as well as to petitioners Nemesio Prudente, Teodosio
Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de
Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo
Tomas and Bayani Alcala, who were released on November
13, 1971, and are no longer deprived of their liberty, their
respective petitions have, thereby, become moot and
academic, as far as their prayer for release is concerned, and
should, accordingly, be dismissed, despite the opposition
thereto of counsel for Nemesio Prudente and Gerardo Tomas
who maintain that, as long as the privilege of the writ remains
suspended, these petitioners might be arrested and detained
again, without just cause, and that, accordingly, the issue
raised in their respective petitions is not moot. In any event, the
common constitutional and legal issues raised in these cases
have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the
petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito
Sison, intervenors in L-33964, L-33965 and L-33973,
Luzvimindo David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, who are still detained? The suspension
of the privilege of the writ was decreed by Proclamation No.
889, as amended, for persons detained "for the crimes of
insurrection or rebellion and other overt acts committed by
them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo
del Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison
and Gary Olivar are accused in Criminal Case No. Q-1623 of
the Court of First Instance of Rizal with a violation of the Anti-
Subversion Act and that the similar charge against petitioners
Angelo de los Reyes and Teresito Sison in a criminal
complaint, originally filed with the City Fiscal of Quezon City,
has, also, been filed with said court. Do the offenses so
charged constitute one of the crimes or overt acts mentioned
in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for
sometime prior thereto and thereafter up to
and including August 21, 1971, in the city
of Quezon, Philippines, and elsewhere in
the Philippines, within the jurisdiction of this
Honorable Court, the above-named
accused knowingly, wilfully and by overt
acts became officers and/or ranking
leaders of the Communist Party of the
Philippines, a subversive association as
defined by Republic Act No. 1700, which
is an organized conspiracy to overthrow
the government of the Republic of the
Philippines by force, violence, deceit,
subversion and other illegal means, for the
purpose of establishing in the Philippines a
communist totalitarian regime subject to
alien domination and control;
That all the above-named accused, as
such officers and/or ranking leaders of the
Communist Party of the Philippines
conspiring, confederating and mutual
helping one another, did then and there
knowingly, wilfully, and feloniously and by
FINALS CONSTITUTION I ACJUCO 226

overt acts committed subversive acts all 3. Thru urban guerilla

intended to overthrow the government of warfare characterized
the Republic of the Philippines, as follows: by assassinations,
bombings, sabotage,
1. By rising publicly and kidnapping and arson,
taking arms against the intended to advertise
forces of the the movement, build up
government, engaging its morale and prestige,
in war against the discredit and
forces of the demoralize the
government, destroying authorities to use harsh
property or committing and repressive
measures, demoralize
serious violence,
exacting contributions the people and weaken
their confidence in the
or diverting public lands
or property from the law government and to
purposes for which they weaken the will of the
have been government to resist.
appropriated;
That the following aggravating
2. By engaging by circumstances attended the commission of
subversion thru the offense:
expansion and
requirement activities a. That the offense was committed in
not only of the contempt of and with insult to the public
Communist Party of the authorities;
Philippines but also of
the united front b. That some of the overt acts were
organizations of the committed in the Palace of the Chief
Communist Party of the Executive;
Philippines as the
Kabataang Makabayan
(KM), Movement for the c. That craft, fraud, or disguise was
Democratic Philippines employed;
(MDP), Samahang
Demokratikong d. That the offense was committed with the
Kabataan (SDK), aid of armed men;
Students' Alliance for
National Democracy
(STAND), MASAKA e. That the offense was committed with the
Olalia-faction, Student aid of persons under fifteen(15) years old.
Cultural Association of
the University of the Identical allegations are made in the complaint filed with the
Philippines (SCAUP), City Fiscal of Quezon City, except that the second paragraph
KASAMA, Pagkakaisa thereof is slightly more elaborate than that of the complaint filed
ng Magbubukid ng with the CFI, although substantially the same. 26
Pilipinas (PMP) and
many others; thru
agitation promoted by In both complaints, the acts imputed to the defendants herein
rallies, demonstration constitute rebellion and subversion, of — in the language of the
and strikes some of proclamation — "other overt acts committed ... in furtherance"
them violent in nature, of said rebellion, both of which are covered by the proclamation
intended to create suspending the privilege of the writ. It is clear, therefore, that
social discontent, the crime for which the detained petitioners are held and
discredit those in power deprived of their liberty are among those for which the privilege
and weaken the of the writ of habeas corpus has been suspended.
people's confidence in
the government; thru Up to this point, the Members of the Court are unanimous on
consistent propaganda the legal principles enunciated.
by publications, writing,
posters, leaflets of
After finding that Proclamation No. 889, as amended, is not
similar means;
invalid and that petitioners Luzvimindo David, Victor Felipe,
speeches, teach-ins,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
messages, lectures or
Teresito Sison are detained for and actually accused of an
other similar means; or
offense for which the privilege of the writ has been suspended
thru the media as the
by said proclamation, our next step would have been the
TV, radio or
following: The Court, or a commissioner designated by it,
newspapers, all
would have received evidence on whether — as stated in
intended to promote the
respondents' "Answer and Return" — said petitioners had
Communist pattern of
been apprehended and detained "on reasonable belief" that
subversion;
they had "participated in the crime of insurrection or rebellion."
FINALS CONSTITUTION I ACJUCO 227
It is so happened, however, that on November 13, 1971 — or
two (2) days before the proceedings relative to the briefing held
on October 28 and 29, 1971, had been completed by the
filing 27 of the summary of the matters then taken up — the
aforementioned criminal complaints were filed against said
petitioners. What is more, the preliminary examination and/or
investigation of the charges contained in said complaints has
already begun. The next question, therefore, is: Shall We now
order, in the cases at hand, the release of said petitioners
herein, despite the formal and substantial validity of the
proclamation suspending the privilege, despite the fact that
they are actually charged with offenses covered by said
proclamation and despite the aforementioned criminal
complaints against them and the preliminary examination
and/or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion, and, so hold, that, instead of this
Court or its Commissioner taking the evidence adverted to
above, it is best to let said preliminary examination and/or
investigation to be completed, so that petitioners' released
could be ordered by the court of first instance, should it find
that there is no probable cause against them, or a warrant for
their arrest could be issued, should a probable cause be
established against them. Such course of action is more
favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of
proof than that needed to establish that the Executive had not
acted arbitrary in causing the petitioners to be apprehended
and detained upon the ground that they had participated in the
commission of the crime of insurrection or rebellion. And, it is
mainly for the reason that the Court has opted to allow the
Court of First Instance of Rizal to proceed with the
determination of the existence of probable cause, although
ordinarily the Court would have merely determined the
existence of the substantial evidence of petitioners' connection
with the crime of rebellion. Besides, the latter alternative would
require the reception of evidence by this Court and thus
duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the
same proceedings would be substantially the same and the
presentation of such evidence cannot be made
simultaneously, each proceeding would tend to delay the
other.
Mr. Justice Fernando is of the opinion — in line with the view
of Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the effect
that "... if and when formal complaint is presented, the court
steps in and the executive steps out. The detention ceases to
be an executive and becomes a judicial concern ..." — that the
filing of the above-mentioned complaint against the six (6)
detained petitioners herein, has the effect of the Executive
giving up his authority to continue holding them pursuant to
Proclamation No. 889, as amended, even if he did not so
intend, and to place them fully under the authority of courts of
justice, just like any other person, who, as such, cannot be
deprived of his liberty without lawful warrant, which has not, as
yet, been issued against anyone of them, and that, accordingly,
We should order their immediate release. Despite the
humanitarian and libertarian spirit with which this view had
been espoused, the other Members of the Court are unable to
accept it because:
(a) If the proclamation suspending the privilege of the writ
of habeas corpus is valid — and We so hold it to be — and the
detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the
suspension of said privilege, and, consequently, his release
may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information
does not detract from the validity and efficacy of the
suspension of the privilege, it would be more reasonable to
construe the filing of said formal charges with the court of first
instance as an expression of the President's belief that there
are sufficient evidence to convict the petitioners so charged
and that hey should not be released, therefore, unless and
until said court — after conducting the corresponding
preliminary examination and/or investigation — shall find that
the prosecution has not established the existence of a probable
cause. Otherwise, the Executive would have released said
accused, as were the other petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the
act of the President in having said formal charges filed — is,
We believe, more beneficial to the detainees than that favored
by Mr. Justice Fernando. His view — particularly the theory that
the detainees should be released immediately, without bail,
even before the completion of said preliminary examination
and/or investigation — would tend to induce the Executive to
refrain from filing formal charges as long as it may be possible.
Manifestly, We should encourage the early filing of said
charges, so that courts of justice could assume jurisdiction over
the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the
Court decide whether the constitutional right to bail is affected
by the suspension of the privilege of the writ of habeas corpus,
We do not deem it proper to pass upon such question, the
same not having been sufficiently discussed by the parties
herein. Besides, there is no point in settling said question with
respect to petitioners herein who have been released. Neither
is necessary to express our view thereon, as regards those still
detained, inasmuch as their release without bail might still be
decreed by the court of first instance, should it hold that there
is no probable cause against them. At any rate, should an
actual issue on the right to bail arise later, the same may be
brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing
Proclamation No. 889, as amended, and that, accordingly, the
same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-
34004, L-34013, L-34039 and L-34265, insofar as petitioners
Teodosio Lansang, Bayani Alcala, Rogelio Arienda,
Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo
Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa
C. de Castro and Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act
with utmost dispatch in conducting the preliminary examination
and/or investigation of the charges for violation of the Anti-
Subversion Act filed against herein petitioners Luzvimindo
David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo
del Rosario and Teresito Sison, and to issue the corresponding
warrants of arrest, if probable cause is found to exist against
them, or, otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever,
either in the completion of the aforementioned preliminary
examination and/or investigation, or in the issuance of the
proper orders or resolution in connection therewith, the parties
may by motion seek in these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
FINALS CONSTITUTION I ACJUCO 228
[G.R. No. 158802. November 17, 2004]
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO
DE VILLA (detained at the New Bilibid Prisons,
Muntinlupa City) REYNALDO DE
VILLA, petitioner, JUNE DE VILLA, petitioner-
relator, vs. THE DIRECTOR, NEW BILIBID
PRISONS, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of habeas
corpus under Rule 102 of the Rules of Court. Petitioner
Reynaldo de Villa, joined by his son, petitioner-relator June de
Villa, seeks a two-fold relief: First, that respondent Director of
Prisons justify the basis for the imprisonment of petitioner
Reynaldo de Villa; and second, that petitioner be granted a
new trial.[1] These reliefs are sought on the basis of purportedly
exculpatory evidence, gathered after performing
deoxyribonucleic acid (DNA) testing on samples allegedly
collected from the petitioner and a child born to the victim of
the rape.
By final judgment dated February 1, 2001, in People of
the Philippines v. Reynaldo de Villa,[2] we found petitioner
guilty of the rape of Aileen Mendoza, his niece by affinity;
sentenced him to suffer the penalty of reclusin perpetua; and
ordered him to pay the offended party civil indemnity, moral
damages, costs of the suit, and support for Leahlyn Corales
Mendoza, the putative child born of the rape. Petitioner is
currently serving his sentence at the New Bilibid Prison,
Muntinlupa City.
As summarized in our Decision dated February 1, 2001,
Aileen Mendoza charged petitioner Reynaldo de Villa with rape
in an information dated January 9, 1995, filed with the Regional
Trial Court of Pasig City. When arraigned on January 26, 1995,
petitioner entered a plea of not guilty.[3]
During the trial, the prosecution established that
sometime in the third week of April 1994, at about 10:00 in the
morning, Aileen Mendoza woke up in her familys rented room
in Sagad, Pasig, Metro Manila, to find petitioner on top of her.
Aileen was then aged 12 years and ten months. She was
unable to shout for help because petitioner covered her mouth
with a pillow and threatened to kill her. Aileen could not do
anything but cry. Petitioner succeeded in inserting his penis
inside her vagina. After making thrusting motions with his body,
petitioner ejaculated. This encounter allegedly resulted in
Aileens pregnancy, which was noticed by her mother, Leonila
Mendoza, sometime in November 1994. When confronted by
her mother, Aileen revealed that petitioner raped her. Aileens
parents then brought her to the Pasig Police Station, where
they lodged a criminal complaint against petitioner. [4]
Dr. Rosaline Cosidon, who examined Aileen, confirmed
that she was eight months pregnant and found in her hymen
healed lacerations at the 5:00 and 8:00 positions. On
December 19, 1994, Aileen gave birth to a baby girl whom she
named Leahlyn Mendoza.[5]
In his defense, petitioner alleged that, at the time of the
alleged rape, he was already 67 years old. Old age and
sickness had rendered him incapable of having an erection. He
further averred that Aileens family had been holding a grudge
against him, which accounted for the criminal charges. Finally,
he interposed the defense of alibi, claiming that at the time of
the incident, he was in his hometown of San Luis, Batangas. [6]
The trial court found petitioner guilty beyond reasonable
doubt of the crime of qualified rape, and sentenced him to
death, to indemnify the victim in the amount of P50,000.00, to
pay the costs of the suit and to support the child, Leahlyn
Mendoza.[7]
On automatic review,[8] we found that the date of birth of
Aileens child was medically consistent with the time of the
rape. Since it was never alleged that Aileen gave birth to a full-
term nine-month old baby, we gave credence to the
prosecutions contention that she prematurely gave birth to an
eight-month old baby by normal delivery.[9] Thus, we affirmed
petitioners conviction for rape, in a Decision the dispositive
portion of which reads:
WHEREFORE, the judgment of the Regional Trial Court,
finding accused-appellant guilty beyond reasonable doubt of
the crime of rape, is AFFIRMED with the MODIFICATIONS
that he is sentenced to suffer the penalty of reclusin
perpetua and ordered to pay the offended party P50,000.00 as
civil indemnity; P50,000.00 as moral damages; costs of the suit
and to provide support for the child Leahlyn Corales Mendoza.
SO ORDERED.[10]
Three years after the promulgation of our Decision, we
are once more faced with the question of Reynaldo de Villas
guilt or innocence.
Petitioner-relator in this case, June de Villa, is the son of
Reynaldo. He alleges that during the trial of the case, he was
unaware that there was a scientific test that could determine
once and for all if Reynaldo was the father of the victims child,
Leahlyn. Petitioner-relator was only informed during the
pendency of the automatic review of petitioners case that DNA
testing could resolve the issue of paternity. [11] This information
was apparently furnished by the Free Legal Assistance Group
(FLAG) Anti-Death Penalty Task Force, which took over as
counsel for petitioner.
Thus, petitioners brief in People v. de Villa sought the
conduct of a blood type test and DNA test in order to determine
the paternity of the child allegedly conceived as a result of the
rape.[12] This relief was implicitly denied in our Decision of
February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for
Partial Reconsideration of the Decision, wherein he once more
prayed that DNA tests be conducted.[13] The Motion was
denied with finality in a Resolution dated November 20,
2001.[14] Hence, the Decision became final and executory on
January 16, 2002.[15]
Petitioner-relator was undaunted by these challenges.
Having been informed that DNA tests required a sample that
could be extracted from saliva, petitioner-relator asked Billy
Joe de Villa, a grandson of Reynaldo de Villa and a classmate
of Leahlyn Mendoza, to ask Leahlyn to spit into a new, sterile
cup.[16] Leahlyn readily agreed and did so. Billy Joe took the
sample home and gave it to the petitioner-relator, who
immediately labeled the cup as Container A.
Petitioner-relator then gathered samples from four
grandchildren of Reynaldo de Villa. These samples were
placed in separate containers with distinguishing labels and
temporarily stored in a refrigerator prior to transport to the DNA
Analysis Laboratory at the National Science Research Institute
(NSRI).[17] During transport, the containers containing the
saliva samples were kept on ice.
Petitioner-relator requested the NSRI to conduct DNA
testing on the sample given by Leahlyn Mendoza, those given
by the grandchildren of Reynaldo de Villa, and that given by
Reynaldo de Villa himself. The identities of the donors of the
FINALS CONSTITUTION I ACJUCO 229
samples, save for the sample given by Reynaldo de Villa, were
not made known to the DNA Analysis Laboratory. [18]
After testing, the DNA Laboratory rendered a preliminary
report on March 21, 2003, which showed that Reynaldo de Villa
could not have sired any of the children whose samples were
tested, due to the absence of a match between the pertinent
genetic markers in petitioners sample and those of any of the
other samples, including Leahlyns.[19]
Hence, in the instant petition for habeas corpus,
petitioner argues as follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY
THAT PETITIONER DE VILLA IS NOT THE FATHER OF
LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE,
BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A
RESULT OF THE ALLEGED RAPE, CANNOT STAND AND
MUST BE SET ASIDE.[20]
xxxxxxxxx
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED
EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS
COURT IN VIEW OF THE RESULTS OF THE DNA TESTS
CONDUCTED.[21]
Considering that the issues are inter-twined, they shall be
discussed together.
In brief, petitioner relies upon the DNA evidence
gathered subsequent to the trial in order to re-litigate the
factual issue of the paternity of the child Leahlyn Mendoza.
Petitioner alleges that this issue is crucial, considering that his
conviction in 2001 was based on the factual finding that he
sired the said child. Since this paternity is now conclusively
disproved, he argues that the 2001 conviction must be
overturned.
In essence, petitioner invokes the remedy of the writ
of habeas corpus to collaterally attack the 2001 Decision. The
ancillary remedy of a motion for new trial is resorted to solely
to allow the presentation of what is alleged to be newly-
discovered evidence. This Court is thus tasked to
determine, first, the propriety of the issuance of a writ
of habeas corpus to release an individual already convicted
and serving sentence by virtue of a final and executory
judgment; and second, the propriety of granting a new trial
under the same factual scenario.
The extraordinary writ of habeas corpus has long been a
haven of relief for those seeking liberty from any unwarranted
denial of freedom of movement. Very broadly, the writ applies
to all cases of illegal confinement or detention by which a
person has been deprived of his liberty, or by which the rightful
custody of any person has been withheld from the person
entitled thereto.[22] Issuance of the writ necessitates that a
person be illegally deprived of his liberty. In the celebrated
case of Villavicencio v. Lukban,[23] we stated that [a]ny restraint
which will preclude freedom of action is sufficient. [24]
The most basic criterion for the issuance of the writ,
therefore, is that the individual seeking such relief be illegally
deprived of his freedom of movement or placed under some
form of illegal restraint. If an individuals liberty is restrained via
some legal process, the writ of habeas corpus is unavailing.
Concomitant to this principle, the writ of habeas corpus cannot
be used to directly assail a judgment rendered by a competent
court or tribunal which, having duly acquired jurisdiction, was
not deprived or ousted of this jurisdiction through some
anomaly in the conduct of the proceedings.
Thus, notwithstanding its historic function as the great
writ of liberty, the writ of habeas corpus has very limited
availability as a post-conviction remedy. In the recent case
of Feria v. Court of Appeals,[25] we ruled that review of a
judgment of conviction is allowed in a petition for the issuance
of the writ of habeas corpus only in very specific instances,
such as when, as a consequence of a judicial proceeding, (a)
there has been a deprivation of a constitutional right resulting
in the restraint of a person; (b) the court had no jurisdiction to
impose the sentence; or (c) an excessive penalty has been
imposed, as such sentence is void as to such excess. [26]
In this instance, petitioner invokes the writ of habeas
corpus to assail a final judgment of conviction, without,
however, providing a legal ground on which to anchor his
petition. In fine, petitioner alleges neither the deprivation of a
constitutional right, the absence of jurisdiction of the court
imposing the sentence, or that an excessive penalty has been
imposed upon him.
In fine, petitioner invokes the remedy of habeas
corpus in order to seek the review of findings of fact long
passed upon with finality. This relief is far outside the scope
of habeas corpusproceedings. In the early case of Abriol v.
Homeres,[27] for example, this Court stated the general rule that
the writ of habeas corpus is not a writ of error, and should not
be thus used. The writ of habeas corpus, whereas permitting a
collateral challenge of the jurisdiction of the court or tribunal
issuing the process or judgment by which an individual is
deprived of his liberty, cannot be distorted by extending the
inquiry to mere errors of trial courts acting squarely within their
jurisdiction.[28] The reason for this is explained very simply in
the case of Velasco v. Court of Appeals:[29] a habeas
corpus petition reaches the body, but not the record of the
case. [30] A record must be allowed to remain extant, and
cannot be revised, modified, altered or amended by the simple
expedient of resort to habeas corpus proceedings.
Clearly, mere errors of fact or law, which did not have the
effect of depriving the trial court of its jurisdiction over the case
and the person of the defendant, are not correctible in a petition
for the issuance of the writ of habeas corpus; if at all, these
errors must be corrected on certiorari or on appeal, in the form
and manner prescribed by law.[31] In the past, this Court has
disallowed the review of a courts appreciation of the evidence
in a petition for the issuance of a writ of habeas corpus, as this
is not the function of said writ.[32] A survey of our decisions
in habeas corpus cases demonstrates that, in general, the writ
of habeas corpus is a high prerogative writ which furnishes an
extraordinary remedy; it may thus be invoked only under
extraordinary circumstances.[33] We have been categorical in
our pronouncements that the writ of habeas corpus is not to be
used as a substitute for another, more proper remedy. Resort
to the writ of habeas corpus is available only in the limited
instances when a judgment is rendered by a court or tribunal
devoid of jurisdiction. If, for instance, it can be demonstrated
that there was a deprivation of a constitutional right, the writ
can be granted even after an individual has been meted a
sentence by final judgment.
Thus, in the case of Chavez v. Court of Appeals,[34] the
writ of habeas corpus was held to be available where an
accused was deprived of the constitutional right against self-
incrimination. A defect so pronounced as the denial of an
accuseds constitutional rights results in the absence or loss of
jurisdiction, and therefore invalidates the trial and the
consequent conviction of the accused. That void judgment of
conviction may be challenged by collateral attack, which
precisely is the function of habeas corpus.[35] Later,
in Gumabon v. Director of the Bureau of Prisons,[36] this Court
ruled that, once a deprivation of a constitutional right is shown
to exist, the court that rendered the judgment is deemed ousted
of jurisdiction and habeas corpus is the appropriate remedy to
assail the legality of the detention.[37] Although in Feria v. Court
of Appeals[38] this Court was inclined to allow the presentation
of new evidence in a petition for the issuance of a writ
of habeas corpus, this was an exceptional situation. In that
FINALS CONSTITUTION I ACJUCO 230
case, we laid down the general rule, which states that the
burden of proving illegal restraint by the respondent rests on
the petitioner who attacks such restraint. Where the return is
not subject to exception, that is, where it sets forth a process
which, on its face, shows good ground for the detention of the
prisoner, it is incumbent on petitioner to allege and prove new
matter that tends to invalidate the apparent effect of such
process.[39]
In the recent case of Calvan v. Court of Appeals,[40] we
summarized the scope of review allowable in a petition for the
issuance of the writ of habeas corpus. We ruled that the writ
of habeas corpus, although not designed to interrupt the
orderly administration of justice, can be invoked by the
attendance of a special circumstance that requires immediate
action. In such situations, the inquiry on a writ of habeas
corpus would be addressed, not to errors committed by a court
within its jurisdiction, but to the question of whether the
proceeding or judgment under which a person has been
restrained is a complete nullity. The probe may thus proceed
to check on the power and authority, itself an equivalent test of
jurisdiction, of the court or the judge to render the order that so
serves as the basis of imprisonment or detention.[41] It is
the nullity of an assailed judgment of conviction which makes
it susceptible to collateral attack through the filing of a petition
for the issuance of the writ of habeas corpus.
Upon a perusal of the records not merely of this case but
of People v. de Villa, we find that the remedy of the writ
of habeas corpus is unavailing.
First, the denial of a constitutional right has not been
alleged by petitioner. As such, this Court is hard-pressed to
find legal basis on which to anchor the grant of a writ of habeas
corpus. Much as this Court sympathizes with petitioners plea,
a careful scrutiny of the records does not reveal any
constitutional right of which the petitioner was unduly deprived.
We are aware that other jurisdictions have seen fit to
grant the writ of habeas corpus in order to test claims that a
defendant was denied effective aid of counsel. [42] In this
instance, we note that the record is replete with errors
committed by counsel, and it can be alleged that the petitioner
was, at trial, denied the effective aid of counsel. The United
States Supreme Court requires a defendant alleging
incompetent counsel to show that the attorneys performance
was deficient under a reasonable standard, and additionally to
show that the outcome of the trial would have been different
with competent counsel.[43] The purpose of the right to effective
assistance of counsel is to ensure that the defendant receives
a fair trial.[44]
The U.S. Supreme Court asserts that in judging any
claim of ineffective assistance of counsel, one must examine
whether counsels conduct undermined the proper functioning
of the adversarial process to such an extent that the trial did
not produce a fair and just result.[45] The proper measure of
attorney performance is reasonable under the prevailing
professional norms, and the defendant must show that the
representation received fell below the objective standard of
reasonableness.[46] For the petition to succeed, the strong
presumption that the counsels conduct falls within the wide
range or reasonable professional assistance must be
overcome.[47]
In the case at bar, it appears that in the middle of the
appeal, the petitioners counsel of record, a certain Atty.
Alfonso G. Salvador, suddenly and inexplicably withdrew his
appearance as counsel, giving the sole explanation that he
was leaving for the United States for an indefinite period of time
by virtue of a petition filed in his favor. [48] In the face of this
abandonment, petitioner made an impassioned plea that his
lawyer be prevented from this withdrawal in a handwritten
Urgent Motion for Reconsideration and Opposition of Counsels
Withdrawal of Appearance with Leave of Court received by this
Court on September 14, 1999.[49] Petitioner alleged that his
counsels withdrawal is an untimely and heartbreaking event,
considering that he had placed all [his] trust and confidence on
[his counsels] unquestionable integrity and dignity. [50]
While we are sympathetic to petitioners plight, we do not,
however, find that there was such negligence committed by his
earlier counsel so as to amount to a denial of a constitutional
right. There is likewise no showing that the proceedings were
tainted with any other jurisdictional defect.
In fine, we find that petitioner invokes the remedy of the
petition for a writ of habeas corpus to seek a re-examination of
the records of People v. de Villa, without asserting any legal
grounds therefor. For all intents and purposes, petitioner seeks
a reevaluation of the evidentiary basis for his conviction. We
are being asked to reexamine the weight and sufficiency of the
evidence in this case, not on its own, but in light of the new
DNA evidence that the petitioner seeks to present to this
Court. This relief is outside the scope of a habeas
corpus petition. The petition for habeas corpus must,
therefore, fail.
Coupled with the prayer for the issuance of a writ
of habeas corpus, petitioner seeks a new trial to re-litigate the
issue of the paternity of the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendozas
paternity is not central to the issue of petitioners guilt or
innocence. The rape of the victim Aileen Mendoza is an entirely
different question, separate and distinct from the question of
the father of her child. Recently, in the case of People v.
Alberio,[51] we ruled that the fact or not of the victims pregnancy
and resultant childbirth are irrelevant in determining whether or
not she was raped. Pregnancy is not an essential element of
the crime of rape. Whether the child which the victim bore was
fathered by the purported rapist, or by some unknown
individual, is of no moment in determining an individuals guilt.
In the instant case, however, we note that the grant of
child support to Leahlyn Mendoza indicates that our Decision
was based, at least in small measure, on the victims claim that
the petitioner fathered her child. This claim was given credence
by the trial court, and, as a finding of fact, was affirmed by this
Court on automatic review.
The fact of the childs paternity is now in issue, centrally
relevant to the civil award of child support. It is only tangentially
related to the issue of petitioners guilt. However, if it can be
conclusively determined that the petitioner did not sire Leahlyn
Mendoza, this may cast the shadow of reasonable doubt, and
allow the acquittal of the petitioner on this basis.
Be that as it may, it appears that the petitioner once more
relies upon erroneous legal grounds in resorting to the remedy
of a motion for new trial. A motion for new trial, under the
Revised Rules of Criminal Procedure, is available only for a
limited period of time, and for very limited grounds. Under
Section 1, Rule 121, of the Revised Rules of Criminal
Procedure, a motion for new trial may be filed at any time
before a judgment of conviction becomes final, that is, within
fifteen (15) days from its promulgation or notice. Upon finality
of the judgment, therefore, a motion for new trial is no longer
an available remedy. Section 2 of Rule 121 enumerates the
grounds for a new trial:
SEC. 2. Grounds for a new trial.The court shall grant a new
trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed during
the trial;
FINALS CONSTITUTION I ACJUCO 231

(b) That new and material evidence has been discovered which
the accused could not with reasonable diligence have
discovered and produced at the trial and which if introduced
and admitted would probably change the judgment.

In the case at bar, petitioner anchors his plea on the

basis of purportedly newly-discovered evidence, i.e., the DNA
test subsequently conducted, allegedly excluding petitioner
from the child purportedly fathered as a result of the rape.
The decision sought to be reviewed in this petition for the
issuance of a writ of habeas corpus has long attained finality,
and entry of judgment was made as far back as January 16,
2002. Moreover, upon an examination of the evidence
presented by the petitioner, we do not find that the DNA
evidence falls within the statutory or jurisprudential definition of
newly- discovered evidence.
A motion for new trial based on newly-discovered
evidence may be granted only if the following requisites are
met: (a) that the evidence was discovered after trial; (b) that
said evidence could not have been discovered and produced
at the trial even with the exercise of reasonable diligence; (c)
that it is material, not merely cumulative, corroborative or
impeaching; and (d) that the evidence is of such weight that
that, if admitted, it would probably change the judgment.[52] It is
essential that the offering party exercised reasonable diligence
in seeking to locate the evidence before or during trial but
nonetheless failed to secure it.[53]
In this instance, although the DNA evidence was
undoubtedly discovered after the trial, we nonetheless find that
it does not meet the criteria for newly-discovered evidence that
would merit a new trial. Such evidence disproving paternity
could have been discovered and produced at trial with the
exercise of reasonable diligence.
Petitioner-relators claim that he was unaware of the
existence of DNA testing until the trial was concluded carries
no weight with this Court. Lack of knowledge of the existence
of DNA testing speaks of negligence, either on the part of
petitioner, or on the part of petitioners counsel. In either
instance, however, this negligence is binding upon petitioner.
It is a settled rule that a party cannot blame his counsel for
negligence when he himself was guilty of neglect.[54] A client is
bound by the acts of his counsel, including the latters mistakes
and negligence.[55] It is likewise settled that relief will not be
granted to a party who seeks to be relieved from the effects of
the judgment when the loss of the remedy at law was due to
his own negligence, or to a mistaken mode of procedure.[56]
Even with all of the compelling and persuasive scientific
evidence presented by petitioner and his counsel, we are not
convinced that Reynaldo de Villa is entitled to outright acquittal.
As correctly pointed out by the Solicitor General, even if it is
conclusively proven that Reynaldo de Villa is not the father of
Leahlyn Mendoza, his conviction could, in theory, still stand,
with Aileen Mendozas testimony and positive identification as
its bases.[57] The Solicitor General reiterates, and correctly so,
that the pregnancy of the victim has never been an element of
the crime of rape.[58] Therefore, the DNA evidence has failed to
conclusively prove to this Court that Reynaldo de Villa should
be discharged. Although petitioner claims that conviction was
based solely on a finding of paternity of the child Leahlyn, this
is not the case. Our conviction was based on the clear and
convincing testimonial evidence of the victim, which, given
credence by the trial court, was affirmed on appeal.
WHEREFORE, in view of the foregoing, the instant
petition for habeas corpus and new trial is DISMISSED for lack
of merit.
No costs.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 232
GR No 171390
DAVID vs. ARROYO
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical
adjustments rather than rigid formula are
necessary.[1] Superior strength Ð the use of force Ð cannot
make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
Chief Justice Artemio V. PanganibanÕs philosophy
of liberty is thus most relevant. He said: ÒIn cases involving
liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak.Ó Laws and
actions that restrict fundamental rights come to the courts
Òwith a heavy presumption against their constitutional
validity.Ó[2]
These seven (7) consolidated petitions for certiorari and
prohibition allege that in issuing Presidential Proclamation No.
1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but
persistently modern problem. How does the Constitution of a
free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty
becomes license?[3]
On February 24, 2006, as the nation celebrated the
20th Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria
Macapagal-Arroyo, President of the
Republic of the Philippines and
Commander-in-Chief of the Armed Forces
of the Philippines, by virtue of the powers
vested upon me by Section 18, Article 7 of
the Philippine Constitution which states
that: ÒThe President. . . whenever it
becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. .
.rebellion. . .,Ó and in my capacity as their
Commander-in-Chief, do hereby
command the Armed Forces of the
Philippines, to maintain law and order
throughout the Philippines, prevent or
suppress all forms of lawless violence
as well as any act of insurrection or
rebellion and to enforce obedience to all
the laws and to all decrees, orders and
regulations promulgated by me
personally or upon my direction; and as
provided in Section 17, Article 12 of the
Constitution do hereby declare a State
of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past
months, elements in the political
opposition have conspired with
authoritarians of the extreme Left
represented by the NDF-CPP-NPA and
the extreme Right, represented by
military adventurists Ð the historical
enemies of the democratic Philippine
State Ð who are now in a tactical alliance
and engaged in a concerted and
systematic conspiracy, over a broad front,
to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators
have repeatedly tried to bring down the
President;
WHEREAS, the claims of these
elements have been recklessly
magnified by certain segments of the
national media;
WHEREAS, this series of actions
is hurting the Philippine State Ð by
obstructing governance
including hindering the growth of the
economy and sabotaging the peopleÕs
confidence in government and their
faith in the future of this country;
WHEREAS, these actions are
adversely affecting the economy;
WHEREAS, these activities
give totalitarian forces of both the
extreme Left and extreme Right the
opening to intensify their avowed aims
to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4
of the our Constitution makes the defense
and preservation of the democratic
institutions and the State the primary duty
of Government;
WHEREAS, the activities above-
described, their consequences,
ramifications and collateral effects
constitute a clear and present danger to
the safety and the integrity of the Philippine
State and of the Filipino people;
On the same day, the President issued G. O. No. 5
implementing PP 1017, thus:
WHEREAS, over these past months,
elements in the political opposition have
conspired with authoritarians of the
extreme Left, represented by the NDF-
CPP-NPA and the extreme Right,
represented by military adventurists - the
historical enemies of the democratic
Philippine State Ð and who are now in a
tactical alliance and engaged in a
concerted and systematic conspiracy, over
a broad front, to bring down the duly-
constituted Government elected in May
2004;
FINALS CONSTITUTION I ACJUCO 233
WHEREAS, these conspirators
have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these
elements have been recklessly magnified
by certain segments of the national media;
WHEREAS, these series of
actions is hurting the Philippine State by
obstructing governance, including
hindering the growth of the economy and
sabotaging the peopleÕs confidence in the
government and their faith in the future of
this country;
WHEREAS, these actions are
adversely affecting the economy;
WHEREAS, these activities give
totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify
their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4
of our Constitution makes the defense and
preservation of the democratic institutions
and the State the primary duty of
Government;
WHEREAS, the activities above-
described, their consequences,
ramifications and collateral effects
constitute a clear and present danger to the
safety and the integrity of the Philippine
State and of the Filipino people;
WHEREAS, Proclamation 1017
date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA
MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution
as President of the Republic of the
Philippines, and Commander-in-Chief of
the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated
February 24, 2006, do hereby call upon the
Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and
lawless violence in the country;
I hereby direct the Chief of Staff of
the AFP and the Chief of the PNP, as well
as the officers and men of the AFP and
PNP, to immediately carry out the
necessary and appropriate actions and
measures to suppress and prevent acts
of terrorism and lawless violence.
On March 3, 2006, exactly one week after the
declaration of a state of national emergency and after all these
petitions had been filed, the President lifted PP 1017. She
issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to
Section 18, Article VII and Section 17,
Article XII of the Constitution,
Proclamation No. 1017 dated February
24, 2006, was issued declaring a state of
national emergency;
WHEREAS, by virtue of General
Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of
Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the
Philippine National Police (PNP), were
directed to maintain law and order
throughout the Philippines, prevent and
suppress all form of lawless violence as
well as any act of rebellion and to
undertake such action as may be
necessary;
WHEREAS, the AFP and PNP
have effectively prevented, suppressed
and quelled the acts lawless violence
and rebellion;
NOW, THEREFORE, I, GLORIA
MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue
of the powers vested in me by law,
hereby declare that the state of
national emergency has ceased to
exist.
In their presentation of the factual bases of PP 1017
and G.O. No. 5, respondents stated that the proximate cause
behind the executive issuances was the conspiracy among
some military officers, leftist insurgents of the New PeopleÕs
Army (NPA), and some members of the political opposition in
a plot to unseat or assassinate President Arroyo. [4] They
considered the aim to oust or assassinate the President and
take-over the reigns of government as a clear and present
danger.
During the oral arguments held on March 7, 2006, the
Solicitor General specified the facts leading to the issuance of
PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitionersÕ counsels.
The Solicitor General argued that the intent of the
Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed
forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he
explained that it is not respondentsÕ task to state the facts
behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of
the issues.
On January 17, 2006, Captain Nathaniel Rabonza
and First Lieutenants Sonny Sarmiento, Lawrence
San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention
cell in Fort Bonifacio, Taguig City. In a public statement, they
vowed to remain defiant and to elude arrest at all costs. They
called upon the people to Òshow and proclaim our displeasure
at the sham regime. Let us demonstrate our disgust, not only
by going to the streets in protest, but also by wearing red bands
on our left arms.Ó [5]
On February 17, 2006, the authorities got hold of a
document entitled ÒOplan Hackle I Ó which detailed plans for
bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members
FINALS CONSTITUTION I ACJUCO 234
and President Arroyo herself.[6] Upon the advice of her
security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured
in a communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the
meetings between members of the Magdalo Group and the
National PeopleÕs Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive
documents.[7] Prior to his arrest, Lt. San Juan announced
through DZRH that the ÒMagdaloÕs D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I.Ó
On February 23, 2006, PNP Chief Arturo Lomibao
intercepted information that members of the PNP- Special
Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr.
to ÒdisavowÓ any defection. The latter promptly obeyed and
issued a public statement: ÒAll SAF units are under the
effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty.Ó
On the same day, at the house of former
Congressman Peping Cojuangco, President Cory AquinoÕs
brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about
his groupÕs plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the ArmyÕs elite Scout
Ranger. Lim said Òit was all systems go for the planned
movement against Arroyo.Ó[8]
B/Gen. Danilo Lim and Brigade Commander Col.
Ariel Querubin confided to Gen. Generoso Senga, Chief of
Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be
held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the soldiers
because they too, were breaking the chain of command to join
the forces foist to unseat the President. However, Gen.
Senga has remained faithful to his Commander-in-Chief and to
the chain of command. He immediately took custody of
B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of
political and revolutionary work within the military and the
police establishments in order to forge alliances with its
members and key officials. NPA spokesman Gregorio ÒKa
RogerÓ Rosal declared: ÒThe Communist Party and
revolutionary movement and the entire people look forward to
the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take
much longer to end it.Ó[9]
On the other hand, Cesar Renerio, spokesman for
the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: ÒAnti-Arroyo groups within the
military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers
and enlisted personnel who undertake counter-insurgency
operations in the field.Ó He claimed that with the forces of the
national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the PresidentÕs
ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army
outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the
Philippines ordering its front organizations to join 5,000 Metro
Manila radicals and 25,000 more from the provinces in mass
protests.[10]
By midnight of February 23, 2006, the President
convened her security advisers and several cabinet members
to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account
for all their men and ensure that the chain of command remains
solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National
Capital Region.
For their part, petitioners cited the events that
followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced
the cancellation of all programs and activities related to the
20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that
political rallies, which to the PresidentÕs mind were organized
for purposes of destabilization, are cancelled. Presidential
Chief of Staff Michael Defensor announced that Òwarrantless
arrests and take-over of facilities, including media, can already
be implemented.Ó[11]
Undeterred by the announcements that rallies and
public assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-
KMU]), marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine. Those who were
already near the EDSA site were violently dispersed by huge
clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear
gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against
the protesters marching forward to Cubao, Quezon City and to
the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally
held along Ayala Avenue and Paseo de Roxas Street in Makati
City.[12]
According to petitioner Kilusang Mayo Uno, the
police cited PP 1017 as the ground for the dispersal of their
assemblies.
During the dispersal of the rallyists along EDSA,
police arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.
At around 12:20 in the early morning of February 25,
2006, operatives of the Criminal Investigation and Detection
FINALS CONSTITUTION I ACJUCO 235
Group (CIDG) of the PNP, on the basis of PP 1017 and G.O.
No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen
from Camp Crame in Quezon City were stationed inside the
editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed
outside the building.[13]
A few minutes after the search and seizure at
the Daily Tribune offices, the police surrounded the premises
of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff
Michael Defensor, is Òmeant to show a Ôstrong presence,Õ
to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government.Ó The PNP
warned that it would take over any media organization that
would not follow Òstandards set by the government during the
state of national emergency.Ó Director General Lomibao
stated that Òif they do not follow the standards Ð and the
standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 Ð we will recommend a
Ôtakeover.ÕÓ National TelecommunicationsÕ
Commissioner Ronald Solis urged television and radio
networks to ÒcooperateÓ with the government for the duration
of the state of national emergency. He asked for Òbalanced
reportingÓ from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for
media coverage when the national security is threatened. [14]
Also, on February 25, 2006, the police arrested
Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The
police showed a warrant for his arrest dated 1985. BeltranÕs
lawyer explained that the warrant, which stemmed from a case
of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these
petitions.
When members of petitioner KMU went to Camp
Crame to visit Beltran, they were told they could not be
admitted because of PP 1017 and G.O. No. 5. Two members
were arrested and detained, while the rest were dispersed by
the police.
Bayan Muna Representative Satur Ocampo eluded
arrest when the police went after him during a public forum at
the Sulo Hotel in Quezon City. But his two drivers, identified
as Roel and Art, were taken into custody.
Retired Major General Ramon Monta–o, former head
of the Philippine Constabulary, was arrested while with his wife
and golfmates at the Orchard Golf and Country Club in
Dasmari–as, Cavite.
Attempts were made to
arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casi–o and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives
where the ÒBatasan 5Ó decided to stay indefinitely.
Let it be stressed at this point that the alleged
violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021
declaring that the state of national emergency has ceased to
exist.
In the interim, these seven (7) petitions challenging
the constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al.
assailed PP 1017 on the grounds that (1) it encroaches on the
emergency powers of Congress; (2) it is a subterfuge to avoid
the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom
of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGÕs act of
raiding the Daily Tribune offices as a clear case of
ÒcensorshipÓ or Òprior restraint.Ó They also claimed that
the term ÒemergencyÓ refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is Òabsolutely
no emergencyÓ that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are
Representative Francis Joseph G. Escudero, and twenty one
(21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casi–o, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute Òusurpation
of legislative powersÓ; Òviolation of freedom of expressionÓ
and Òa declaration of martial law.Ó They alleged that
President Arroyo Ògravely abused her discretion in calling out
the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is
necessity to do so.Ó
In G.R. No. 171483, petitioners KMU, NAFLU-KMU,
and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble
to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law
Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 4[15] of
Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article
III, (c) Section 23[19] of Article VI, and (d) Section 17[20] of
Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I.
Cadiz et al., alleged that PP 1017 is an Òarbitrary and unlawful
exercise by the President of her Martial Law powers.Ó And
assuming that PP 1017 is not really a declaration of Martial
Law, petitioners argued that Òit amounts to an exercise by the
President of emergency powers without congressional
approval.Ó In addition, petitioners asserted that PP 1017
FINALS CONSTITUTION I ACJUCO 236
Ògoes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code.Ó
And lastly, in G.R. No. 171424, petitioner Loren B.
Legarda maintained that PP 1017 and G.O. No. 5 are
Òunconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of the 1987
Constitution.Ó In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondentsÕ Consolidated Comment, the Solicitor
General countered that: first, the petitions should be dismissed
for being moot; second, petitioners in G.R. Nos.
171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.),
171485 (Escudero et al.) and 171489 (Cadiz et al.) have no
legal standing; third, it is not necessary for petitioners to
implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not
violate the peopleÕs right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments
and heard the parties on the above interlocking issues which
may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP
1021 renders the petitions moot and
academic.
2) Whether petitioners
in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court
can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O.
No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural
roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system
to this country is the concept of judicial review enunciated
in Marbury v. Madison.[21] This concept rests on the
extraordinary simple foundation --
The Constitution is the supreme law.
It was ordained by the people, the ultimate
source of all political authority. It confers
limited powers on the national government.
x x x If the government consciously or
unconsciously oversteps these
limitations there must be some
authority competent to hold it in control,
to thwart its unconstitutional attempt,
and thus to vindicate and preserve
inviolate the will of the people as
expressed in the Constitution. This
power the courts exercise. This is the
beginning and the end of the theory of
judicial review.[22]
But the power of judicial review does not repose upon the
courts a Òself-starting capacity.Ó[23] Courts may exercise
such power only when the following requisites are
present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of
the constitutional question must be necessary to the
determination of the case itself.[24]
Respondents maintain that the first and second
requisites are absent, hence, we shall limit our discussion
thereon.
An actual case or controversy involves a conflict of
legal right, an opposite legal claims susceptible of judicial
resolution. It is Òdefinite and concrete, touching the legal
relations of parties having adverse legal interest;Ó a real and
substantial controversy admitting of specific relief. [25] The
Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were
rendered Òmoot and academicÓ by President ArroyoÕs
issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to
present a justiciable controversy by virtue of supervening
events,[26] so that a declaration thereon would be of no
practical use or value.[27] Generally, courts decline jurisdiction
over such case[28] or dismiss it on ground of mootness.[29]
The Court holds that President ArroyoÕs issuance of
PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these
alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that Òan
unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical
formula that can automatically dissuade the courts in resolving
a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the
situation and the paramount public interest is
involved;[32] third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar,
and the public;[33] and fourth, the case is capable of repetition
yet evading review.[34]
All the foregoing exceptions are present here and
justify this CourtÕs assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that
the issues being raised affect the publicÕs interest, involving
as they do the peopleÕs basic rights to freedom of expression,
of assembly and of the press. Moreover, the Court has the
FINALS CONSTITUTION I ACJUCO 237
duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the
protection given by constitutional guarantees. [35] And lastly,
respondentsÕ contested actions are capable of
repetition. Certainly, the petitions are subject to
judicial review.
In their attempt to prove the alleged mootness of this
case, respondents cited Chief Justice Artemio V.
PanganibanÕs Separate Opinion in Sanlakas v. Executive
Secretary.[36] However, they failed to take into account the
Chief JusticeÕs very statement that an otherwise ÒmootÓ
case may still be decided Òprovided the party raising it in a
proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance.Ó The present case
falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various
personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.
Locus standi is defined as Òa right of appearance in a
court of justice on a given question.Ó [37] In private suits,
standing is governed by the Òreal-parties-in interestÓ rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that Òevery action must
be prosecuted or defended in the name of the real party in
interest.Ó Accordingly, the Òreal-party-in interestÓ is Òthe
party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of
the suit.Ó[38] Succinctly put, the plaintiffÕs standing is based
on his own right to the relief sought.
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a Òpublic rightÓ in
assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who
is affected no differently from any other person. He could be
suing as a Òstranger,Ó or in the category of a Òcitizen,Ó or
Ôtaxpayer.Ó In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a ÒcitizenÓ or
Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ
and ÒtaxpayerÓ standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,[39] where it was held
that the plaintiff in a taxpayerÕs suit is in a different category
from the plaintiff in a citizenÕs suit. In the former, the
plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:[40] ÒIn matter of mere
public right, howeverÉthe people are the real partiesÉIt is
at least the right, if not the duty, of every citizen to interfere
and see that a public offence be properly pursued and
punished, and that a public grievance be
remedied.Ó With respect to taxpayerÕs suits, Terr v.
Jordan[41] held that Òthe right of a citizen and a taxpayer to
maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.Ó
However, to prevent just about any person from seeking
judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme
Court laid down the more stringent Òdirect injuryÓ test in Ex
Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The
same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or
legislative action, he must show that he has sustained a
direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all
members of the public.
This Court adopted the Òdirect injuryÓ test in our
jurisdiction. In People v. Vera,[44] it held that the person who
impugns the validity of a statute must have Òa personal and
substantial interest in the case such that he has sustained,
or will sustain direct injury as a result.Ó The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President
of the Senate,[45] Manila Race Horse TrainersÕ Association v.
De la Fuente,[46] Pascual v. Secretary of Public
Works[47] and Anti-Chinese League of the Philippines v.
Felix.[48]
However, being a mere procedural technicality, the
requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan,[49] where
the Òtranscendental importanceÓ of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to
pass upon the issues raised due to the Òfar-reaching
implicationsÓ of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the
suit. Indeed, there is a chain of cases where this liberal policy
has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations
and rulings.[51]
Thus, the Court has adopted a rule that even where the
petitioners have failed to show direct injury, they have been
allowed to sue under the principle of Òtranscendental
importance.Ó Pertinent are the following cases:
(1) Chavez v. Public Estates
Authority,[52] where the Court ruled that the
enforcement of the constitutional right
to information and the equitable
diffusion of natural resources are
matters of transcendental importance
which clothe the petitioner with locus
standi;
(2) Bagong Alyansang
Makabayan v. Zamora,[53] wherein the
Court held that Ògiven the
transcendental importance of the issues
involved, the Court may relax the
standing requirements and allow the
suit to prosper despite the lack of direct
injury to the parties seeking judicial
reviewÓ of the Visiting Forces Agreement;
(3) Lim v. Executive
Secretary,[54] while the Court noted that the
petitioners may not file suit in their capacity
as taxpayers absent a showing that
ÒBalikatan 02-01Ó involves the exercise of
CongressÕ taxing or spending powers,
FINALS CONSTITUTION I ACJUCO 238
it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,[55] that
in cases of transcendental importance,
the cases must be settled promptly and
definitely and standing requirements
may be relaxed.
By way of summary, the following rules may be culled
from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
(1) the cases involve constitutional
issues;
(2) for taxpayers, there must be a claim
of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must
be a showing that the issues raised are of
transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim
that the official action complained of infringes
upon their prerogatives as legislators.
Significantly, recent decisions show a certain
toughening in the CourtÕs attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the
status of Kilosbayan as a peopleÕs organization does not give
it the requisite personality to question the validity of the on-line
lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it
sue as a concerned citizen as it does not allege any specific
injury it has suffered.
In Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Comelec,[57] the Court reiterated the
Òdirect injuryÓ test with respect to concerned citizensÕ cases
involving constitutional issues. It held that Òthere must be a
showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to
itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court
ruled that only the petitioners who are members of Congress
have standing to sue, as they claim that the PresidentÕs
declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared
them to be devoid of standing, equating them with the LDP
in Lacson.
Now, the application of the above principles to the
present petitions.
The locus standi of petitioners in G.R. No. 171396,
particularly David and Llamas, is beyond doubt. The same
holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged Òdirect injuryÓ
resulting from Òillegal arrestÓ and Òunlawful searchÓ
committed by police operatives pursuant to PP 1017. Rightly
so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen
alleged there was usurpation of legislative powers. They also
raised the issue of whether or not the concurrence of Congress
is necessary whenever the alarming powers incident to Martial
Law are used. Moreover, it is in the interest of justice that
those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the
liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,[61] Association of Small Landowners in the Philippines,
Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine
Amusement and Gaming Corporation,[63] and Ta–ada v.
Tuvera,[64] that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017
and G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all
permits for public assemblies following the issuance of PP
1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are
national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017
and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares
that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no
personality as a taxpayer to file the instant petition as there are
no allegations of illegal disbursement of public funds. The fact
that she is a former Senator is of no consequence. She can
no longer sue as a legislator on the allegation that her
prerogatives as a lawmaker have been impaired by PP 1017
and G.O. No. 5. Her claim that she is a media personality will
not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing
her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But
considering once more the transcendental importance of the
issue involved, this Court may relax the standing rules.
FINALS CONSTITUTION I ACJUCO 239

It must always be borne in mind that the question
of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of
the Òliberality doctrineÓ on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the
application of the Òtranscendental importanceÓ doctrine, a
relaxation of the standing requirements for the petitioners in
the ÒPP 1017 cases.Ó
constitutionally supreme.Ó[76] In 1973, the unanimous
Court of Lansang was divided in Aquino v. Enrile.[77] There,
the Court was almost evenly divided on the issue
of whether the validity of the imposition of
Martial Law is a political or justiciable question. [78] Then
came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to re-examine
the latter case, ratiocinating that Òin times of war or national
emergency, the President must be given absolute control
for the very life of the nation and the government is in
great peril. The President, it intoned, is answerable only
to his conscience, the People, and God.Ó[79]

This Court holds that all the petitioners herein

have locus standi.
Incidentally, it is not proper to implead President
Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual
incumbency,[67] may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or
law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important
that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the
many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President
is not accountable to anyone. Like any other official, he
remains accountable to the people[68] but he may be removed
from office only in the mode provided by law and that is by
impeachment.[69]
The Integrated Bar of the Philippines v. Zamora[80] -
- a recent case most pertinent to these cases at bar -- echoed
a principle similar to Lansang. While the Court considered the
PresidentÕs Òcalling-outÓ power as a discretionary power
solely vested in his wisdom, it stressed that Òthis does not
prevent an examination of whether such power was
exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave
abuse of discretion.Ó This ruling is mainly a result of the
CourtÕs reliance on Section 1, Article VIII of 1987 Constitution
which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the
courts are authorized not only Òto settle actual controversies
involving rights which are legally demandable and
enforceable,Ó but also Òto determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the government.Ó The latter part of the
authority represents a broadening of judicial power to enable
the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of
the government.[81] It speaks of judicial prerogative not only in
terms of power but also of duty.[82]

B. SUBSTANTIVE As to how the Court may inquire into the PresidentÕs

I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual
basis. Hence, it was not ÒnecessaryÓ for President Arroyo to
issue such Proclamation.
The issue of whether the Court may review the
factual bases of the PresidentÕs exercise of his Commander-
in-Chief power has reached its distilled point - from the
indulgent days of Barcelon
Baker[70] and Montenegro v. Castaneda[71] to
the volatile era of Lansang v. Garcia,[72] Aquino, Jr. v.
Enrile, and Garcia-Padilla v. Enrile.[74] The tug-of-war
[73]
always cuts across the line defining Òpolitical questions,Ó
particularly those questions Òin regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government.Ó[75] Barcelon and
Montenegro were in unison in declaring that the authority to
decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members
of the Court were unanimous in the conviction that the Court
has the authority to inquire into the existence of factual bases
in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to
the system of checks and balances, Òunder which the
President is supreme, x x x only if and when he acts within
the sphere allotted to him by the Basic Law, and
authority to determine whether or not he has so acted is
vested in the Judicial Department, which in this
respect, is, in
exercise of power, Lansang adopted the test that Òjudicial
inquiry can go no further than to satisfy the Court not that the
PresidentÕs decision is correct,Ó but that Òthe President did
not act arbitrarily.Ó Thus, the standard laid down is not
correctness, but arbitrariness.[83] In Integrated Bar of the
Philippines, this Court further ruled that Òit is incumbent
upon the petitioner to show that the PresidentÕs decision
is totally bereft of factual basisÓ and that if he fails, by way
of proof, to support his assertion, then Òthis Court cannot
undertake an independent investigation beyond the
pleadings.Ó
v.
Petitioners failed to show that President ArroyoÕs
exercise of the calling-out power, by issuing PP 1017, is totally
bereft of factual basis. A reading of the Solicitor GeneralÕs
Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are
the escape of the Magdalo Group, their audacious threat of
the Magdalo D-Day, the defections in the military, particularly
in the Philippine Marines, and the reproving statements from
the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017
calling for military aid.
the
Indeed, judging the seriousness of the incidents,
turn, President Arroyo was not expected to simply fold her arms and
FINALS CONSTITUTION I ACJUCO 240
do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise
of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the
power of the President in times of emergency. A glimpse at
the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil
government, called upon the English doctrine of prerogative to
cope with the problem of emergency. In times of danger to
the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown
retained a prerogative Òpower to act according to
discretion for the public good, without the proscription of
the law and sometimes even against it.Ó[84] But Locke
recognized that this moral restraint might not suffice to avoid
abuse of prerogative powers. Who shall judge the need for
resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting
that Òthe people have no other remedy in this, as in all
other cases where they have no judge on earth, but to
appeal to Heaven.Ó[85]
Jean-Jacques Rousseau also assumed the need for
temporary suspension of democratic processes of government
in time of emergency. According to him:
The inflexibility of the laws, which
prevents them from adopting themselves to
circumstances, may, in certain cases,
render them disastrous and make them
bring about, at a time of crisis, the ruin of
the StateÉ
It is wrong therefore to wish to
make political institutions as strong as to
render it impossible to suspend their
operation. Even Sparta allowed its law to
lapse...
If the peril is of such a kind that
the paraphernalia of the laws are an
obstacle to their preservation, the method
is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a
moment the sovereign authority. In such a
case, there is no doubt about the general
will, and it clear that the peopleÕs first
intention is that the State shall not perish. [86]
Rosseau did not fear the abuse of the emergency
dictatorship or Òsupreme magistracyÓ as he termed it. For
him, it would more likely be cheapened by Òindiscreet
use.Ó He was unwilling to rely upon an Òappeal to
heaven.Ó Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of
representative government: ÒI am far from condemning, in
cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship.Ó[88]
Nicollo MachiavelliÕs view of emergency powers, as
one element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of
prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:
Now, in a well-ordered society, it
should never be necessary to resort to
extra Ðconstitutional measures; for
although they may for a time be beneficial,
yet the precedent is pernicious, for if the
practice is once established for good
objects, they will in a little while be
disregarded under that pretext but for evil
purposes. Thus, no republic will ever be
perfect if she has not by law provided for
everything, having a remedy for every
emergency and fixed rules for applying
it.[89]
Machiavelli Ð in contrast to Locke, Rosseau and Mill Ð
sought to incorporate into the constitution a regularized system
of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted
forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time
of emergency, with effective constitutional restraints. [90]
Contemporary political theorists, addressing
themselves to the problem of response to emergency by
constitutional democracies, have employed the doctrine of
constitutional dictatorship.[91] Frederick M. Watkins saw Òno
reason why absolutism should not be used as a means for
the defense of liberal institutions,Ó provided it Òserves to
protect established institutions from the danger of
permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of
political life.Ó[92] He recognized the two (2) key elements of
the problem of emergency governance, as well as all
constitutional governance: increasing administrative
powers of the executive, while at the same
time Òimposing limitation upon that power.Ó[93] Watkins
placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: ÒThe period of dictatorship must be relatively
shortÉDictatorship should always be strictly legitimate in
characterÉFinal authority to determine the need for
dictatorship in any given case must never rest with the
dictator himselfÉÓ[94] and the objective of such an
emergency dictatorship should be Òstrict political
conservatism.Ó
Carl J. Friedrich cast his analysis in terms similar to
those of Watkins.[95] ÒIt is a problem of concentrating power
Ð in a government where power has consciously been divided
Ð to cope withÉ situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers,
when, for how long, and to what end.Ó[96] Friedrich, too,
offered criteria for judging the adequacy of any of scheme of
emergency powers, to wit: ÒThe emergency executive must
be appointed by constitutional means Ð i.e., he must be
legitimate; he should not enjoy power to determine the
FINALS CONSTITUTION I ACJUCO 241

existence of an emergency; emergency powers should be dictatorship, like the decision to

exercised under a strict time limitation; and last, the institute one should never be in
objective of emergency action must be the defense of the the hands of the man or men who
constitutional order.Ó[97] constitute the dictator. . .

10) No constitutional
dictatorship should extend
Clinton L. Rossiter, after surveying the history of the beyond the termination of the
employment of emergency powers in Great Britain, France, crisis for which it was institutedÉ
Weimar, Germany and the United States, reverted to a
description of a scheme of Òconstitutional dictatorshipÓ as 11) Éthe termination of
solution to the vexing problems presented by the crisis must be followed by a
emergency.[98] Like Watkins and Friedrich, he stated a complete return as possible to the
priori the conditions of success of the Òconstitutional political and governmental
dictatorship,Ó thus: conditions existing prior to the
initiation of the constitutional
dictatorshipÉ[99]
1) No general regime or
particular institution of
constitutional dictatorship should Rossiter accorded to legislature a far greater role in the
be initiated unless it is necessary oversight exercise of emergency powers than did
or even indispensable to the Watkins. He would secure to Congress final responsibility for
preservation of the State and its declaring the existence or termination of an emergency, and
constitutional orderÉ he places great faith in the effectiveness of congressional
investigating committees.[100]
2) Éthe decision to Scott and Cotter, in analyzing the above contemporary
institute a constitutional theories in light of recent experience, were one in saying that,
dictatorship should never be in Òthe suggestion that democracies surrender the control
the hands of the man or men who of government to an authoritarian ruler in time of grave
will constitute the dictatorÉ danger to the nation is not based upon sound
constitutional theory.Ó To appraise emergency power in
3) No government terms of constitutional dictatorship serves merely to distort the
should initiate a constitutional problem and hinder realistic analysis. It matters not whether
dictatorship without making the term ÒdictatorÓ is used in its normal sense (as applied to
specific provisions for its authoritarian rulers) or is employed to embrace all chief
terminationÉ executives administering emergency powers. However used,
Òconstitutional dictatorshipÓ cannot be divorced from the
4) Éall uses of implication of suspension of the processes of
emergency powers and all constitutionalism. Thus, they favored instead the Òconcept of
readjustments in the organization constitutionalismÓ articulated by Charles H. McIlwain:
of the government should be
effected in pursuit of A concept of constitutionalism
constitutional or legal which is less misleading in the analysis of
requirementsÉ problems of emergency powers, and which
is consistent with the findings of this study,
5) É no dictatorial is that formulated by Charles H. McIlwain.
institution should be adopted, no While it does not by any means necessarily
right invaded, no regular exclude some indeterminate limitations
procedure altered any more than upon the substantive powers of
is absolutely necessary for the government, full emphasis is placed
conquest of the particular crisis . . upon procedural limitations,
. and political responsibility. McIlwain
clearly recognized the need to repose
6) The measures adequate power in government. And in
adopted in the prosecution of the discussing the meaning of
a constitutional dictatorship constitutionalism, he insisted that
should never be permanent in the historical and proper test of
character or effectÉ constitutionalism was the existence of
adequate processes for keeping
7) The dictatorship government responsible. He refused to
should be carried on by persons equate constitutionalism with the
representative of every part of the enfeebling of government by an
citizenry interested in the defense exaggerated emphasis upon separation of
of the existing constitutional powers and substantive limitations on
order. . . governmental power. He found that the
really effective checks on despotism have
8) Ultimate consisted not in the weakening of
responsibility should be government but, but rather in the limiting
maintained for every action taken of it; between which there is a great and
under a constitutional very significant difference. In associating
dictatorship. . . constitutionalism with ÒlimitedÓ as
distinguished from ÒweakÓ
9) The decision to government, McIlwain meant
terminate a constitutional government limited to the orderly
FINALS CONSTITUTION I ACJUCO 242
procedure of law as opposed to the
processes of force. The two
fundamental correlative elements of
constitutionalism for which all lovers of
liberty must yet fight are the legal limits
to arbitrary power and a complete
political responsibility of government to
the governed.[101]
In the final analysis, the various approaches to
emergency of the above political theorists Ð- from LockÕs
Òtheory of prerogative,Ó to WatkinsÕ doctrine of
Òconstitutional dictatorshipÓ and, eventually, to McIlwainÕs
Òprinciple of constitutionalismÓ --- ultimately aim to solve one
real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be
exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this
problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the
concept of Justice JacksonÕs Òbalanced power
structure.Ó[102] Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme
Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of
emergency. Each branch is given a role to serve as
limitation or check upon the
other. This system does not weaken the
President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate
within carefully prescribed procedural limitations.
a. ÒFacial ChallengeÓ
Petitioners contend that PP 1017 is void on its face
because of its Òoverbreadth.Ó They claim that its enforcement
encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a Òchilling
effectÓ to the citizens.
A facial review of PP 1017, using the overbreadth
doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an
analytical tool developed for testing Òon their facesÓ statutes
in free speech cases, also known under the American Law as
First Amendment cases.[103]
A plain reading of PP 1017 shows that it is not
primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v.
Salerno,[104] the US Supreme Court held that Òwe have not
recognized an ÔoverbreadthÕ doctrine outside the limited
context of the First AmendmentÓ (freedom of speech).
Moreover, the overbreadth doctrine is not intended
for testing the validity of a law that Òreflects legitimate state
interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.Ó Undoubtedly, lawless
violence, insurrection and rebellion are considered ÒharmfulÓ
and Òconstitutionally unprotected conduct.Ó In Broadrick v.
Oklahoma,[105] it was held:
It remains a Ômatter of no little
difficultyÕ to determine when a law may
properly be held void on its face and when
Ôsuch summary actionÕ is
inappropriate. But the plain import of
our cases is, at the very least, that facial
overbreadth adjudication is an
exception to our traditional rules of
practice and that its function, a limited
one at the outset, attenuates as the
otherwise unprotected behavior that it
forbids the State to sanction moves
from Ôpure speechÕ toward
conduct and that conduct Ðeven if
expressive Ð falls within the scope of
otherwise valid criminal laws that reflect
legitimate state interests in maintaining
comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in
cases involving statutes which, by their terms, seek to
regulate only Òspoken wordsÓ and again, that
Òoverbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.Ó[106] Here,
the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly
subject to state regulation.
Second, facial invalidation of laws is considered as
Òmanifestly strong medicine,Ó to be used Òsparingly and
only as a last resort,Ó and is Ògenerally
disfavored;Ó[107] The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not
be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in
other situations not before the Court.[108] A writer and
scholar in Constitutional Law explains further:
The most distinctive feature of
the overbreadth technique is that it
marks an exception to some of the usual
rules of constitutional
litigation. Ordinarily, a particular
litigant claims that a statute is
unconstitutional as applied to him or
her; if the litigant prevails, the courts
carve away the unconstitutional aspects
of the law by invalidating its improper
applications on a case to case
basis. Moreover, challengers to a law
are not permitted to raise the rights of
third parties and can only assert their
own interests. In overbreadth analysis,
those rules give way; challenges are
permitted to raise the rights of third
parties; and the court invalidates the entire
statute Òon its face,Ó not merely Òas
applied forÓ so that the overbroad law
becomes unenforceable until a properly
authorized court construes it more
narrowly. The factor that motivates courts
to depart from the normal adjudicatory
rules is the concern with the Òchilling;Ó
deterrent effect of the overbroad statute on
third parties not courageous enough to
bring suit. The Court assumes that an
FINALS CONSTITUTION I ACJUCO 243
overbroad lawÕs Òvery existence may
cause others not before the court to refrain
from constitutionally protected speech or
expression.Ó An overbreadth ruling is
designed to remove that deterrent effect on
the speech of those third parties.
In other words, a facial challenge using the
overbreadth doctrine will require the Court to examine PP 1017
and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the
Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,[109] it was held that:
[T]he task of analyzing a
proposed statute, pinpointing its
deficiencies, and requiring correction of
these deficiencies before the statute is put
into effect, is rarely if ever an appropriate
task for the judiciary. The combination of
the relative remoteness of the
controversy, the impact on the
legislative process of the relief sought,
and above all the speculative and
amorphous nature of the required line-
by-line analysis of detailed
statutes,...ordinarily results in a kind of
case that is wholly unsatisfactory for
deciding constitutional questions,
whichever way they might be decided.
And third, a facial challenge on the ground of
overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there
can be no instance when the assailed law may be
valid. Here, petitioners did not even attempt to show whether
this situation exists.
Petitioners likewise seek a facial review of PP 1017
on the ground of vagueness. This, too, is unwarranted.
Related to the ÒoverbreadthÓ doctrine is the Òvoid
for vagueness doctrineÓ which holds that Òa law is facially
invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application.Ó[110] It
is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing Òon
their facesÓ statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on
its face only if it is vague in all its possible applications.
Again, petitioners did not even attempt to show that PP
1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand
the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into
three important provisions, thus:
First provision:
Òby virtue of the power vested
upon me by Section 18, Artilce VII É do
hereby command the Armed Forces of the
Philippines, to maintain law and order
throughout the Philippines, prevent or
suppress all forms of lawless violence as
well any act of insurrection or rebellionÓ
Second provision:
Òand to enforce obedience to all
the laws and to all decrees, orders and
regulations promulgated by me personally
or upon my direction;Ó
Third provision:
Òas provided in Section 17,
Article XII of the Constitution do hereby
declare a State of National Emergency.Ó
First Provision: Calling-out Power
The first provision pertains to the PresidentÕs
calling-out power. In
Sanlakas v. Executive Secretary,[111] this Court, through Mr.
Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the
Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes
necessary, he may call out such armed
forces to prevent or suppress lawless
violence, invasion or rebellion. In case of
invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege
of the writ of habeas corpus or place the
Philippines or any part thereof under
martial law. Within forty-eight hours from
the proclamation of martial law or the
suspension of the privilege of the writ
of habeas corpus, the President shall
submit a report in person or in writing to the
Congress. The Congress, voting jointly, by
a vote of at least a majority of all its
Members in regular or special session, may
revoke such proclamation or suspension,
which revocation shall not be set aside by
the President. Upon the initiative of the
President, the Congress may, in the same
manner, extend such proclamation or
suspension for a period to be determined
by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall
within twenty-four hours following such
proclamation or suspension, convene in
accordance with its rules without need of a
call.
The Supreme Court may review, in
an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases
of the proclamation of martial law or the
FINALS CONSTITUTION I ACJUCO 244
suspension of the privilege of the writ or the
extension thereof, and must promulgate its
decision thereon within thirty days from its
filing.
A state of martial law does not
suspend the operation of the Constitution,
nor supplant the functioning of the civil
courts or legislative assemblies, nor
authorize the conferment of jurisdiction on
military courts and agencies over civilians
where civil courts are able to function, nor
automatically suspend the privilege of the
writ.
The suspension of the privilege of the
writ shall apply only to persons judicially
charged for rebellion or offenses inherent in
or directly connected with invasion.
During the suspension of the privilege
of the writ, any person thus arrested or
detained shall be judicially charged within
three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a ÒsequenceÓ
of graduated powers. From the most to the least benign, these
are: the calling-out power, the power to suspend the privilege
of the writ of habeas corpus, and the power to declare Martial
Law. Citing Integrated Bar of the Philippines v.
Zamora,[112] the Court ruled that the only criterion for the
exercise of the calling-out power is that Òwhenever it
becomes necessary,Ó the President may call the armed
forces Òto prevent or suppress lawless violence, invasion
or rebellion.Ó Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then
prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her OfficeÕs vast intelligence network, she is
in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon
the armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the PresidentÕs
calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes
to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction
between the PresidentÕs authority to declare a Òstate of
rebellionÓ (in Sanlakas) and the authority to proclaim a state
of national emergency. While President ArroyoÕs authority to
declare a Òstate of rebellionÓ emanates from her powers as
Chief Executive, the statutory authority cited in Sanlakas was
Section 4, Chapter 2, Book II of the Revised Administrative
Code of 1987, which provides:
SEC. 4. Ð Proclamations. Ð
Acts of the President fixing a date
or declaring a status or condition
of public moment or interest,
upon the existence of which the
operation of a specific law or
regulation is made to depend,
shall be promulgated in
proclamations which shall have
the force of an executive order.
President ArroyoÕs declaration of a Òstate of rebellionÓ
was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did
not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17,
Article XII, a provision on the StateÕs extraordinary power to
take over privately-owned public utility and business affected
with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot
be deemed harmless, without legal significance, or not written,
as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP
1017 is actually a declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out
power.
The declaration of Martial Law is a Òwarn[ing] to citizens
that the military power has been called upon by the executive
to assist in the maintenance of law and order, and that, while
the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of
law.Ó[113]
In his ÒStatement before the Senate Committee on
JusticeÓ on March 13, 2006, Mr. Justice Vicente V.
Mendoza,[114] an authority in constitutional law, said that of the
three powers of the President as Commander-in-Chief, the
power to declare Martial Law poses the most severe threat to
civil liberties. It is a strong medicine which should not be
resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not
suspend the operation of the Constitution,
nor supplant the functioning of the civil
courts or legislative assemblies, nor
authorize the conferment of jurisdiction on
military courts and agencies over civilians
where civil courts are able to function, nor
automatically suspend the privilege of the
writ.
Justice Mendoza also stated that PP 1017 is not a
declaration of Martial Law. It is no more than a call by the
President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use
for any other purpose is a perversion of its nature and scope,
and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a)
arrests and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees,
are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of
Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP
1017 is not a declaration of Martial Law. It is merely an
exercise of President ArroyoÕs calling-out power for the
FINALS CONSTITUTION I ACJUCO 245
armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: ÒTake CareÓ Power
The second provision pertains to the power of the
President to ensure that the laws be faithfully executed. This
is based on Section 17, Article VII which reads:
SEC. 17. The President shall
have control of all the executive
departments, bureaus, and offices. He
shall ensure that the laws be faithfully
executed.
As the Executive in whom the executive power is
[115]
vested, the primary function of the President is to enforce
the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming
office, he is required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among others,
Òexecute its laws.Ó[116] In the exercise of such function, the
President, if needed, may employ the powers attached to his
office as the Commander-in-Chief of all the armed forces of the
country,[117] including the Philippine National Police[118] under
the Department of Interior and Local Government. [119]
Petitioners, especially Representatives Francis
Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro
Casi–o, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact
laws in Congress. They assail the clause Òto enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction.Ó
\ an executive order.
PetitionersÕ contention is understandable. A
reading of PP 1017 operative clause shows that it was
lifted[120] from Former President MarcosÕ Proclamation No.
1081, which partly reads:
NOW, THEREFORE, I,
FERDINAND E. MARCOS, President of
the Philippines by virtue of the powers
vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do
hereby place the entire Philippines as
defined in Article 1, Section 1 of the
Constitution under martial law and, in my
capacity as their Commander-in-Chief, do
hereby command the Armed Forces of
the Philippines, to maintain law and
order throughout the Philippines,
prevent or suppress all forms of lawless
violence as well as any act of
insurrection or rebellion and to enforce
obedience to all the laws and decrees,
orders and regulations promulgated by
me personally or upon my direction.
We all know that it was PP 1081 which granted
President Marcos legislative power. Its enabling clause
states: Òto enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or
upon my direction.Ó Upon the other hand, the enabling
clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my
direction.Ó
Is it within the domain of President Arroyo to
promulgate ÒdecreesÓ?
PP 1017 states in
part: Òto enforce obedience to all the laws and decrees
x x x promulgated by me personally or upon my
direction.Ó
The President is granted an Ordinance Power under
Chapter 2, Book III of Executive Order No. 292 (Administrative
Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Ñ Acts
of the President providing for rules of a
general or permanent character in
implementation or execution of
constitutional or statutory powers shall be
promulgated in executive orders.
Sec. 3. Administrative Orders. Ñ
Acts of the President which relate to
particular aspect of governmental
operations in pursuance of his duties as
administrative head shall be promulgated
in administrative orders.
Sec. 4. Proclamations. Ñ Acts of
the President fixing a date or declaring a
status or condition of public moment or
interest, upon the existence of which the
operation of a specific law or regulation is
made to depend, shall be promulgated in
proclamations which shall have the force of
Sec. 5. Memorandum Orders. Ñ
Acts of the President on matters of
administrative detail or of subordinate or
temporary interest which only concern a
particular officer or office of the
Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars.
Ñ Acts of the President on matters relating
to internal administration, which the
President desires to bring to the attention
of all or some of the departments,
agencies, bureaus or offices of the
Government, for information or
compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special
Orders. Ñ Acts and commands of the
President in his capacity as Commander-
in-Chief of the Armed Forces of the
Philippines shall be issued as general or
special orders.
FINALS CONSTITUTION I ACJUCO 246
President ArroyoÕs ordinance power is limited to the
foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP
1081. Presidential Decrees are laws which are of the same
category and binding force as statutes because they were
issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973
Constitution.[121]
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo the
authority to promulgate Òdecrees.Ó Legislative power is
peculiarly within the province of the Legislature. Section 1,
Article VI categorically states that Ò[t]he legislative power
shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of
Representatives.Ó To be sure, neither Martial Law nor a
state of rebellion nor a state of emergency can justify President
ArroyoÕs exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees
and laws through the military?
As this Court stated earlier, President Arroyo has no
authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to
Òlaws,Ó she cannot call the military to enforce or implement
certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the
like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to
enforce obedience to all
the laws and to all
decrees, orders, and
regulations
promulgated by me
personally or upon my
direction; and as
provided in Section
17, Article XII of the
Constitution do
hereby declare a state
of national
emergency.
The import of this provision is that President Arroyo,
during the state of national emergency under PP 1017, can call
the military not only to enforce obedience Òto all the laws and
to all decrees x x xÓ but also to act pursuant to the provision
of Section 17, Article XII which reads:
Sec. 17. In times of national
emergency, when the public interest so
requires, the State may, during the
emergency and under reasonable terms
prescribed by it, temporarily take over or
direct the operation of any privately-owned
public utility or business affected with
public interest.
What could be the reason of President Arroyo in
invoking the above provision when she issued PP 1017?
The answer is simple. During the existence of the
state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress,
to take over or direct the operation of any privately-owned
public utility or business affected with public interest.
This provision was first introduced in the 1973
Constitution, as a product of the Òmartial lawÓ thinking of the
1971 Constitutional Convention.[122] In effect at the time of its
approval was President MarcosÕ Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of
National Defense to take over Òthe management, control and
operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present
national emergency.Ó
Petitioners, particularly the members of the House of
Representatives, claim that President ArroyoÕs inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the
legislatureÕs emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the PresidentÕs
authority to declare Òa state of national emergencyÓ
and to exercise emergency powers. To the first, as
elucidated by the Court, Section 18, Article VII grants the
President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a
vote of two-thirds of both Houses in joint
session assembled, voting separately,
shall have the sole power to declare the
existence of a state of war.
(2) In times of war or other
national emergency, the Congress may,
by law, authorize the President, for a limited
period and subject to such restrictions as it
may prescribe, to exercise powers
necessary and proper to carry out a
declared national policy. Unless sooner
withdrawn by resolution of the Congress,
such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the
above provision refers not only to war but also to Òother
national emergency.Ó If the intention of the Framers of our
Constitution was to withhold from the President the authority to
declare a Òstate of national emergencyÓ pursuant to Section
18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the
Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he
can declare a Òstate of national emergency.Ó The logical
conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the
absence of a Congressional enactment.
FINALS CONSTITUTION I ACJUCO 247
But the exercise of emergency powers, such as the
taking over of privately owned public utility or business affected
with public interest, is
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions
in pari materia are to be construed together. Otherwise stated,
different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed
together and considered in the light of each
other.[123] Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of
emergency powers. This is evident in the tenor of Section 23
(2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain
conditions, thus:
(1) There must be
a war or other emergency.
(2) The delegation must be for
a limited period only.
(3) The delegation must
be subject to such
restrictions as the
Congress may
prescribe.
(4) The emergency powers must
be exercised to carry out
a national
policy declared by
Congress.[124]
Section 17, Article XII must be understood as an aspect
of the emergency powers clause. The taking over of private
business affected with public interest is just another facet of
the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the Òthe State
may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business
affected with public interest,Ó it refers to Congress, not the
President. Now, whether or not the President may exercise
such power is dependent on whether Congress may delegate
it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,[125] held:
It is clear that if the President had
authority to issue the order he did, it must
be found in some provision of the
Constitution. And it is not claimed that
express constitutional language grants this
power to the President. The contention is
that presidential power should be implied
from the aggregate of his powers under the
Constitution. Particular reliance is placed
on provisions in Article II which say that
ÒThe executive Power shall be vested in a
President . . . .;Ó that Òhe shall take Care
that the Laws be faithfully executed;Ó and
that he Òshall be Commander-in-Chief of
the Army and Navy of the United States.
a
The order cannot properly be
sustained as an exercise of the
PresidentÕs military power as
Commander-in-Chief of the Armed
Forces. The Government attempts to do
so by citing a number of cases upholding
broad powers in military commanders
engaged in day-to-day fighting in a theater
of war. Such cases need not concern us
here. Even though Òtheater of warÓ be
an expanding concept, we cannot with
faithfulness to our constitutional
system hold that the Commander-in-
Chief of the Armed Forces has the
ultimate power as such to take
possession of private property in order
to keep labor disputes from stopping
production. This is a job for the
nationÕs lawmakers, not for its military
authorities.
Nor can the seizure order be
sustained because of the several
constitutional provisions that grant
executive power to the President. In the
framework of our Constitution, the
PresidentÕs power to see that the laws
are faithfully executed refutes the idea
that he is to be a lawmaker. The
Constitution limits his functions in the
lawmaking process to the
recommending of laws he thinks wise
and the vetoing of laws he thinks
bad. And the Constitution is neither
silent nor equivocal about who shall
make laws which the President is to
execute. The first section of the first
article says that ÒAll legislative Powers
herein granted shall be vested in a
Congress of the United States. . .Ó[126]
Petitioner Cacho-Olivares, et al. contends that the
term ÒemergencyÓ under Section 17, Article XII refers to
Òtsunami,Ó Òtyphoon,Ó ÒhurricaneÓ and Òsimilar
occurrences.Ó This is a limited view of Òemergency.Ó
Emergency, as a generic term, connotes the
existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the
elements of intensity, variety, and
perception.[127] Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been
occasioned by a wide range of situations, classifiable under
three (3) principal heads: a) economic,[128] b) natural
disaster,[129] and c) national security.[130]
ÒEmergency,Ó as contemplated in our Constitution,
is of the same breadth. It may include rebellion, economic
crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect.[131] This is
evident in the Records of the Constitutional Commission, thus:
FINALS CONSTITUTION I ACJUCO 248
MR. GASCON. Yes. What is the
CommitteeÕs definition of Ònational
emergencyÓ which appears in Section 13,
page 5? It reads:
When the common good so requires,
the State may temporarily take over or
direct the operation of any privately owned
public utility or business affected with
public interest.
MR. VILLEGAS. What I mean is
threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question
by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those
would not be covered by the term Ònational
emergency.Ó
MR. BENGZON. Unless they are of
such proportions such that they would
paralyze government service.[132]
x x x them respectively.Ó
x x x
MR. TINGSON. May I ask the
committee if Ònational emergencyÓ refers
to military national emergency or could
this be economic emergency?Ó
MR. VILLEGAS. Yes, it could refer
to both military or economic
dislocations.
MR. TINGSON. Thank you very
much.[133]
It may be argued that when there is national emergency,
Congress may not be able to convene and, therefore, unable
to delegate to the President the power to take over privately-
owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that
legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.
Òx x x
After all the criticisms that
have been made against the
efficiency of the system of the
separation of powers, the fact
remains that the Constitution has
set up this form of government,
with all its defects and
shortcomings, in preference to
the commingling of powers in one
man or group of men. The
Filipino people by adopting
parliamentary government have
given notice that they share the
faith of other democracy-loving
peoples in this system, with all its
faults, as the ideal. The point is,
under this framework of
government, legislation is
preserved for Congress all the
time, not excepting periods of
crisis no matter how
serious. Never in the history of
the United States, the basic
features of whose Constitution
have been copied in ours, have
specific functions of the
legislative branch of enacting
laws been surrendered to another
department Ð unless we regard
as legislating the carrying out of a
legislative policy according to
prescribed standards; no, not
even when that Republic was
fighting a total war, or when it was
engaged in a life-and-death
struggle to preserve the
Union. The truth is that under our
concept of constitutional
government, in times of extreme
perils more than in normal
circumstances Ôthe various
branches, executive, legislative,
and judicial,Õ given the ability to
act, are called upon Ôto perform
the duties and discharge the
responsibilities committed to
Following our interpretation of Section 17, Article XII,
invoked by President Arroyo in issuing PP 1017, this Court
rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of
any privately owned public utility or business affected with
public interest without authority from Congress.
Let it be emphasized that while the President alone
can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The
President cannot decide whether
exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with
public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types
of businesses affected with public interest that should be taken
over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article
VII in the absence of an emergency powers act passed by
Congress.
c. ÒAS APPLIED CHALLENGEÓ
One of the misfortunes of an emergency, particularly,
that which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right
against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate Òdirect
injury.Ó
In G.R. No. 171396, petitioners David and Llamas
alleged that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20thAnniversary
FINALS CONSTITUTION I ACJUCO 249
of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25,
2006, the CIDG operatives Òraided and ransacked without
warrantÓ their office. Three policemen were assigned to
guard their office as a possible Òsource of
destabilization.Ó Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and
NAFLU-KMU et al. alleged that their members were Òturned
away and dispersedÓ when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People
Power I.
A perusal of the Òdirect injuriesÓ allegedly suffered by
the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017
and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to
declare statutes invalid although they may be abused and
misabused[135] and may afford an opportunity for abuse in
the manner of application.[136] The validity of a statute or
ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects
in a particular case.[137] PP 1017 is merely an invocation of
the PresidentÕs calling-out power. Its general purpose is to
command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there
is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the
citizensÕ constitutional rights.
Now, may this Court adjudge a law or ordinance
unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.[138] This is
logical. Just imagine the absurdity of situations when laws
maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the
Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into
effect the provisions of PP 1017. General orders are Òacts
and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.Ó
They are internal rules issued by the executive officer to his
subordinates precisely for
the proper and efficientadministration of law. Such rules
and regulations create no relation except between the official
who issues them and the official who receives them.[139] They
are based on and are the product of, a relationship in which
power is their source, and obedience, their object.[140] For
these reasons, one requirement for these rules to be valid is
that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to
immediately carry out the Ònecessary and appropriate
actions and measures to suppress and prevent acts of
terrorism and lawless violence.Ó
Unlike the term Òlawless violenceÓ which is
unarguably extant in our statutes and the Constitution, and
which is invariably associated with Òinvasion, insurrection or
rebellion,Ó the phrase Òacts of terrorismÓ is still an
amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.
In fact, this Òdefinitional predicamentÓ or the
Òabsence of an agreed definition of terrorismÓ confronts not
only our country, but the international
community as well. The following observations are quite
apropos:
In the actual unipolar context of
international relations, the Òfight against
terrorismÓ has become one of the basic
slogans when it comes to the justification of
the use of force against certain states and
against groups operating
internationally. Lists of states Òsponsoring
terrorismÓ and of terrorist organizations
are set up and constantly being updated
according to criteria that are not always
known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all
these military actions Ð or threats of the
use of force as the most recent by the
United States against Iraq Ð consists in the
absence of an agreed definition of
terrorism.
Remarkable confusion persists in
regard to the legal categorization of acts of
violence either by states, by armed groups
such as liberation movements, or by
individuals.
The dilemma can by summarized
in the saying ÒOne countryÕs terrorist is
another countryÕs freedom fighter.Ó The
apparent contradiction or lack of
consistency in the use of the term
ÒterrorismÓ may further be demonstrated
by the historical fact that leaders of national
liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba
in Tunisia, or Ahmed Ben Bella in Algeria,
to mention only a few, were originally
labeled as terrorists by those who
controlled the territory at the time, but later
became internationally respected
statesmen.
What, then, is the defining
criterion for terrorist acts Ð the differentia
specifica distinguishing those acts from
eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War
the United Nations Organization has been
trying in vain to reach a consensus on the
basic issue of definition. The organization
has intensified its efforts recently, but has
been unable to bridge the gap between
those who associate ÒterrorismÓ with any
violent act by non-state groups against
FINALS CONSTITUTION I ACJUCO 250
civilians, state functionaries or
infrastructure or military installations, and
those who believe in the concept of the
legitimate use of force when resistance
against foreign occupation or against
systematic oppression of ethnic and/or
religious groups within a state is
concerned.
The dilemma facing the
international community can best be
illustrated by reference to the contradicting
categorization of organizations and
movements such as Palestine Liberation
Organization (PLO) Ð which is a terrorist
group for Israel and a liberation movement
for Arabs and Muslims Ð the Kashmiri
resistance groups Ð who are terrorists in
the perception of India, liberation fighters in
that of Pakistan Ð the earlier Contras in
Nicaragua Ð freedom fighters for the
United States, terrorists for the Socialist
camp Ð or, most drastically, the Afghani
Mujahedeen (later to become the Taliban
movement): during the Cold War period
they were a group of freedom fighters for
the West, nurtured by the United States,
and a terrorist gang for the Soviet
Union. One could go on and on in
enumerating examples of conflicting
categorizations that cannot be reconciled in
any way Ð because of opposing political
interests that are at the roots of those
perceptions.
How, then, can those
contradicting definitions and conflicting
perceptions and evaluations of one and the
same group and its actions be
explained? In our analysis, the basic
reason for these striking inconsistencies
lies in the divergent interest of
states. Depending on whether a state is in
the position of an occupying power or in
that of a rival, or adversary, of an occupying
power in a given territory, the definition of
terrorism will ÒfluctuateÓ accordingly. A
state may eventually see itself as protector
of the rights of a certain ethnic group
outside its territory and will therefore speak
of a Òliberation struggle,Ó not of
ÒterrorismÓ when acts of violence by this
group are concerned, and vice-versa.
The United Nations Organization
has been unable to reach a decision on the
definition of terrorism exactly because of
these conflicting interests of sovereign
states that determine in each and every
instance how a particular armed movement
(i.e. a non-state actor) is labeled in regard
to the terrorists-freedom fighter
dichotomy. A Òpolicy of double
standardsÓ on this vital issue of
international affairs has been the
unavoidable consequence.
This Òdefinitional predicamentÓ
of an organization consisting of sovereign
states Ð and not of peoples, in spite of the
emphasis in the Preamble to the United
Nations Charter! Ð has become even more
serious in the present global power
constellation: one superpower exercises
the decisive role in the Security Council,
former great powers of the Cold War era as
well as medium powers are increasingly
being marginalized; and the problem has
become even more acute since the terrorist
attacks of 11 September 2001 I the United
States.[141]
The absence of a law defining Òacts of terrorismÓ
may result in abuse and oppression on the part of the police or
military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and
oppression on their part. It must be remembered that an act
can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty
thereon.
So far, the word ÒterrorismÓ appears only once in
our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981
enacted by President Marcos during the Martial Law
regime. This decree is entitled ÒCodifying The Various Laws
on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations.Ó The word
ÒterrorismÓ is mentioned in the following provision: ÒThat
one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion
temporal x x x.Ó
P.D. No. 1835 was repealed by E.O. No. 167 (which
outlaws the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define Òacts of terrorism.Ó Since there
is no law defining Òacts of terrorism,Ó it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices
and residences, taking over the media enterprises, prohibition
and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O.
No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the Òacts of
terrorismÓ portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5
authorizing the military or police to commit acts beyond what
are necessary and appropriate to suppress and prevent
lawless violence, the limitation of their authority in pursuing
the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that Òthe right of the
people to be secured in their persons, houses, papers and
effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after
FINALS CONSTITUTION I ACJUCO 251
examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be
seized.Ó[142] The plain import of the language of the
Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly
issued search warrant or warrant of arrest. Thus, the
fundamental protection given by this provision is that between
person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue
search warrants or warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David,
certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on
the basis of PP 1017; third, he was brought at Camp
Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth, he
was treated brusquely by policemen who Òheld his head and
tried to push himÓ inside an unmarked car; fifth, he was
charged with Violation of Batas Pambansa Bilang No.
880[145]and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh, he was eventually released for
insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on
Criminal Procedure provides:
Sec. 5. Arrest without
warrant; when lawful. - A peace
officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence,
the person to be arrested has
committed, is actually committing, or
is attempting to commit an offense.
(b) When an offense has
just been committed and he has
probable cause to believe based on
personal knowledge of facts or
circumstances that the person to be
arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above
justifies petitioner DavidÕs warrantless arrest. During the
inquest for the charges of inciting to sedition andviolation
of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-
shirts with the invective ÒOust Gloria
NowÓand their erroneous assumption that petitioner David
was the leader of the rally.[146] Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was
not wearing the subject t-shirt and even if he was wearing it,
such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not
even known whether petitioner David was the leader of the
rally.[147]
But what made it doubly worse for petitioners
David et al. is that not only was their right against warrantless
arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging
the freedom of speech, of expression, or of
the press, or the right of the people
peaceably to assemble and petition the
government for redress of grievances.
ÒAssemblyÓ means a right on the part of the citizens
to meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican
institution and complements the right of speech. As in the case
of freedom of expression, this right is not to be limited, much
less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to
prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to
previous restraint or censorship. It may not be conditioned
upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al.
were arrested while they were exercising their right to peaceful
assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to
seditionand violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officersÕ
conduct. In De Jonge v. Oregon,[148] it was held that
peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful
discussion cannot be made a crime. The
holding of meetings for peaceable political
action cannot be proscribed. Those who
assist in the conduct of such meetings
cannot be branded as criminals on that
score. The question, if the rights of free
speech and peaceful assembly are not to
be preserved, is not as to the auspices
under which the meeting was held but as to
its purpose; not as to the relations of the
speakers, but whether their utterances
transcend the bounds of the freedom of
speech which the Constitution protects. If
the persons assembling have committed
crimes elsewhere, if they have formed or
are engaged in a conspiracy against the
public peace and order, they may be
prosecuted for their conspiracy or other
violations of valid laws. But it is a different
matter when the State, instead of
prosecuting them for such offenses,
seizes upon mere participation in a
peaceable assembly and a lawful public
FINALS CONSTITUTION I ACJUCO 252
discussion as the basis for a criminal
charge.
On the basis of the above principles, the Court
likewise considers the dispersal and arrest of the members of
KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malaca–angÕs
directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that Òfreedom of assembly is not to be limited,
much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a
right to prevent.Ó[149] Tolerance is the rule and limitation is
the exception. Only upon a showing that an assembly
presents a clear and present danger that the State may deny
the citizensÕ right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate
assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the
determination of the presence of clear and present danger.
Here, petitioners were not even notified and heard on the
revocation of their permits.[150] The first time they learned of it
was at the time of the dispersal. Such absence of notice is a
fatal defect. When a personÕs right is restricted by
government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according
to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents
another facet of freedom of speech i.e., the freedom of the
press. PetitionersÕ narration of facts, which the Solicitor
General failed to refute, established the
following: first, the Daily TribuneÕs offices were searched
without warrant; second, the police operatives seized several
materials for publication; third, the search was conducted at
about 1:00 oÕ clock in the morning of February 25,
2006; fourth, the search was conducted in the absence of any
official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government
officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was Òmeant to show a
Ôstrong presence,Õ to tell media outlets not to connive or
do anything that would help the rebels in bringing down
this government.Ó Director General Lomibao further stated
that Òif they do not follow the standards Ðand the
standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 Ð we will
recommend a Ôtakeover.ÕÓ National Telecommunications
Commissioner Ronald Solis urged television and radio
networks to ÒcooperateÓ with the government for the
duration of the state of national emergency. He warned that
his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media
coverage during times when the national security is
threatened.[151]
The search is illegal. Rule 126 of The Revised Rules
on Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with
one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that
the search of a house, room, or any other premise be made in
the presence of the lawful occupantthereof or any member
of his family or in the absence of the latter, in the presence of
two (2) witnesses of sufficient age and discretion residing in
the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were
violated by the CIDG operatives.
Not only that, the search violated petitionersÕ
freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by
its media. In the Burgos v. Chief of Staff[152] this Court held
that --
As heretofore stated, the
premises searched were the business and
printing offices of the "Metropolitan Mail"
and the "We ForumÓ newspapers. As a
consequence of the search and
seizure, these premises were padlocked
and sealed, with the further result that
the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of
previous restraint or censorship
abhorrent to the freedom of the press
guaranteed under the fundamental law,
and constitutes a virtual denial of
petitioners' freedom to express
themselves in print. This state of being
is patently anathematic to a democratic
framework where a free, alert and even
militant press is essential for the
political enlightenment and growth of
the citizenry.
While admittedly, the Daily Tribune was not
padlocked and sealed like the ÒMetropolitan MailÓ and ÒWe
ForumÓ newspapers in the above case, yet it cannot be denied
that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen
that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.[153] Undoubtedly, the The
Daily Tribune was subjected to these arbitrary intrusions
because of its anti-government sentiments. This Court cannot
tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to
comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against
FINALS CONSTITUTION I ACJUCO 253

any stealthy encroachments thereon. The motto should issues. So

always be obsta principiis.[154] why do you
have to go
there at 1
oÕclock in the
morning and
Incidentally, during the oral arguments, the Solicitor without any
General admitted that the search of the TribuneÕs offices and search
the seizure of its materials for publication and other papers are warrant? Did
illegal; and that the same are inadmissible Òfor any purpose,Ó they become
thus: suddenly part
of the
JUSTICE CALLEJO: evidence of
rebellion or
You made quite inciting to
a mouthful of sedition or
admission what?
when you
said that the SOLGEN BENIPAYO:
policemen,
when Well, it was the
inspected the police that did
Tribune for that, Your
the purpose Honor. Not
of gathering upon my
evidence and instructions.
you admitted
that the SR. ASSO. JUSTICE
policemen PUNO:
were able to
get the Are you saying
clippings. Is that the act of
that not in the policeman
admission of is illegal, it is
the not based on
admissibility any law, and it
of these is not based
clippings that on
were taken Proclamation
from the 1017.
Tribune?
SOLGEN BENIPAYO:
SOLICITOR GENERAL
BENIPAYO: It is not based
on
Under the law Proclamation
they would 1017, Your
seem to be, if Honor,
they were because
illegally there is
seized, I think nothing in
and I know, 1017 which
Your Honor, says that the
and these are police could
inadmissible go and
for any inspect and
purpose.[155] gather
clippings from
x x x x x Daily Tribune
x x or any other
xx newspaper.

SR. ASSO. JUSTICE SR. ASSO. JUSTICE

PUNO: PUNO:

These have Is it based on

been any law?
published in
the past SOLGEN BENIPAYO:
issues of the
Daily Tribune; As far as I
all you have know, no,
to do is to get Your Honor,
those past
FINALS CONSTITUTION I ACJUCO 254

from the result in no constitutional or statutory breaches if applied

facts, no. according to their letter.Ó

SR. ASSO. JUSTICE The Court has passed upon the constitutionality of
PUNO: these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is
So, it has no limited to the calling out by the President of the military to
basis, no prevent or suppress lawless violence, invasion or
legal basis rebellion. When in implementing its provisions, pursuant to
whatsoever? G.O. No. 5, the military and the police committed acts which
violate the citizensÕ rights under the Constitution, this Court
has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V.

SOLGEN BENIPAYO: PanganibanÕs concurring opinion, attached hereto, is
considered an integral part of this ponencia.
Maybe so, Your
Honor. Mayb
e so, that is SUMMATION
why I said, I
donÕt know if In sum, the lifting of PP 1017 through the issuance of
it is premature PP 1021 Ð a supervening event Ð would have normally
to say rendered this case moot and academic. However, while PP
this, we do 1017 was still operative, illegal acts were committed allegedly
not condone in pursuance thereof. Besides, there is no guarantee that PP
this. If the 1017, or one similar to it, may not again be issued. Already,
people who there have been media reports on April 30, 2006 that allegedly
have been PP 1017 would be reimposed Òif the May 1 ralliesÓ become
injured by Òunruly and violent.Ó Consequently, the transcendental
this would issues raised by the parties should not be Òevaded;Ó they
want to sue must now be resolved to prevent future constitutional
them, they aberration.
can sue and
there are The Court finds and so holds that PP 1017 is
remedies for constitutional insofar as it constitutes a call by the President for
this.[156] the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed
Likewise, the warrantless arrests and seizures earlier. However, PP 1017Õs extraneous provisions giving the
executed by the police were, according to the Solicitor General, President express or implied power (1) to issue decrees; (2) to
illegal and cannot be condoned, thus: direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by
CHIEF JUSTICE the President; and (3) to impose standards on media or any
PANGANIBAN: form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under
There seems Section 17, Article XII of the Constitution, the President, in the
to be some confusions absence of a legislation, cannot take over privately-owned
if not contradiction in public utility and private business affected with public interest.
your theory.

SOLICITOR GENERAL
BENIPAYO: In the same vein, the Court finds G.O. No. 5 valid. It
is an Order issued by the President Ð acting as Commander-
I donÕt know in-Chief Ð addressed to subalterns in the AFP to carry out the
whether this will provisions of PP 1017. Significantly, it also provides a valid
clarify. The acts, the standard Ð that the military and the police should take only the
supposed illegal or Ònecessary and appropriate actions and measures to
unlawful acts suppress and prevent acts of lawless violence.Ó But the
committed on the words Òacts of terrorismÓ found in G.O. No. 5 have not been
occasion of 1017, as I legally defined and made punishable by Congress and should
said, it cannot be thus be deemed deleted from the said G.O. While
condoned. You ÒterrorismÓ has been denounced generally in media, no law
cannot blame the has been enacted to guide the military, and eventually the
President for, as you courts, to determine the limits of the AFPÕs authority in
said, a misapplication carrying out this portion of G.O. No. 5.
of the law. These are
acts of the police
officers, that is their
responsibility.[157] On the basis of the relevant and uncontested facts
narrated earlier, it is also pristine clear that (1) the warrantless
arrest of petitioners Randolf S. David and Ronald Llamas; (2)
the dispersal of the rallies and warrantless arrest of the KMU
The Dissenting Opinion states that PP 1017 and and NAFLU-KMU members; (3) the imposition of standards on
G.O. No. 5 are constitutional in every aspect and Òshould media or any prior restraint on the press; and (4) the
FINALS CONSTITUTION I ACJUCO 255

warrantless search of the Tribune offices and the whimsical No costs.

seizures of some articles for publication and other materials, SO ORDERED.
are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017
and G.O. No. 5.

Other than this declaration of invalidity, this Court

cannot impose any civil, criminal or administrative sanctions on
the individual police officers concerned. They have not been
individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal
Informations have not been presented before this
Court. Elementary due process bars this Court from making
any specific pronouncement of civil, criminal or administrative
liabilities.

It is well to remember that military power is a

means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to
protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a
democratic state. During emergency, governmental action
may vary in breadth and intensity from normal times, yet they
should not be arbitrary as to unduly restrain our peopleÕs
liberty.

Perhaps, the vital lesson that we must learn from the

theorists who studied the various competing political
philosophies is that, it is possible to grant government the
authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal
limits to arbitrary power, and political responsibility of the
government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The

Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However,
the provisions of PP 1017 commanding the AFP to enforce
laws not related to lawless violence, as well as decrees
promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section
17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take over
privately-owned public utility or business affected with public
interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a

standard by which the AFP and the PNP should implement PP
1017, i.e. whatever is Ònecessary and appropriate actions
and measures to suppress and prevent acts of lawless
violence.Ó Considering that Òacts of terrorismÓ have not yet
been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and
Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any
form of prior restraint on the press, as well as the warrantless
search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are
declared UNCONSTITUTIONAL.
FINALS CONSTITUTION I ACJUCO 256
GR 190293
Fortun vs. Arroyo
DECISION
ABAD, J.:
These cases concern the constitutionality of a presidential
proclamation of martial law and suspension of the privilege
of habeas corpus in 2009 in a province in Mindanao which
were withdrawn after just eight days.
The Facts and the Case
The essential background facts are not in dispute. On
November 23, 2009 heavily armed men, believed led by the
ruling Ampatuan family, gunned down and buried under
shoveled dirt 57 innocent civilians on a highway in
Maguindanao. In response to this carnage, on November 24
President Arroyo issued Presidential Proclamation 1946,
declaring a state of emergency in Maguindanao, Sultan
Kudarat, and Cotabato City to prevent and suppress similar
lawless violence in Central Mindanao.
Believing that she needed greater authority to put
order in Maguindanao and secure it from large groups of
persons that have taken up arms against the constituted
authorities in the province, on December 4, 2009 President
Arroyo issued Presidential Proclamation 1959 declaring
martial law and suspending the privilege of the writ of habeas
corpus in that province except for identified areas of the Moro
Islamic Liberation Front.
Two days later or on December 6, 2009 President
Arroyo submitted her report to Congress in accordance with
Section 18, Article VII of the 1987 Constitution which required
her, within 48 hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, to
submit to that body a report in person or in writing of her action.
In her report, President Arroyo said that she acted
based on her finding that lawless men have taken up arms in
Maguindanao and risen against the government. The
President described the scope of the uprising, the nature,
quantity, and quality of the rebels weaponry, the movement of
their heavily armed units in strategic positions, the closure of
the Maguindanao Provincial Capitol, Ampatuan Municipal Hall,
Datu Unsay Municipal Hall, and 14 other municipal halls, and
the use of armored vehicles, tanks, and patrol cars with
unauthorized PNP/Police markings.
On December 9, 2009 Congress, in joint session,
convened pursuant to Section 18, Article VII of the 1987
Constitution to review the validity of the Presidents action. But,
two days later or on December 12 before Congress could act,
the President issued Presidential Proclamation 1963, lifting
martial law and restoring the privilege of the writ of habeas
corpus in Maguindanao.
Petitioners Philip Sigfrid A. Fortun and the other petitioners in
G.R. 190293, 190294, 190301,190302, 190307, 190356, and
190380 brought the present actions to challenge the
constitutionality of President Arroyos Proclamation 1959
affecting Maguindanao. But, given the prompt lifting of that
proclamation before Congress could review it and before any
serious question affecting the rights and liberties of
Maguindanaos inhabitants could arise, the Court deems any
review of its constitutionality the equivalent of beating a dead
horse.
Prudence and respect for the co-equal departments of the
government dictate that the Court should be cautious in
entertaining actions that assail the constitutionality of the acts
of the Executive or the Legislative department. The issue of
constitutionality, said the Court in Biraogo v. Philippine Truth
Commission of 2010,[1] must be the very issue of the case, that
the resolution of such issue is unavoidable.
The issue of the constitutionality of Proclamation 1959 is not
unavoidable for two reasons:
One. President Arroyo withdrew her proclamation of martial
law and suspension of the privilege of the writ of habeas
corpus before the joint houses of Congress could fulfill their
automatic duty to review and validate or invalidate the
same. The pertinent provisions of Section 18, Article VII of the
1987 Constitution state:
Sec. 18. The President shall be the
Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes
necessary, he may call out such armed
forces to prevent or suppress lawless
violence, invasion or rebellion. In case of
invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege
of the writ of habeas corpus or place
the Philippines or any part thereof under
martial law. Within forty-eight hours from
the proclamation of martial law or the
suspension of the privilege of writ
of habeas corpus, the President shall
submit a report in person or in writing to the
Congress. The Congress, voting jointly, by
a vote of at least a majority of all its
Members in regular or special session, may
revoke such proclamation or suspension,
which revocation shall not be set aside by
the President. Upon the initiative of the
President, the Congress may, in the same
manner, extend such proclamation or
suspension for a period to be determined
by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall,
within twenty-four hours following such
proclamation or suspension, convene in
accordance with its rules without any need
of a call.
xxxx
Although the above vests in the President the power to
proclaim martial law or suspend the privilege of the writ
of habeas corpus, he shares such power with the
Congress. Thus:
1. The Presidents proclamation or
suspension is temporary, good for only 60
days;
2. He must, within 48 hours of the
proclamation or suspension, report his
action in person or in writing to Congress;
3. Both houses of Congress, if not in
session must jointly convene within 24
hours of the proclamation or suspension for
the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke
or affirm the Presidents proclamation or
suspension, allow their limited effectivity to
lapse, or extend the same if Congress
deems warranted.
It is evident that under the 1987 Constitution the President and
the Congress act in tandem in exercising the power to proclaim
FINALS CONSTITUTION I ACJUCO 257
martial law or suspend the privilege of the writ of habeas
corpus. They exercise the power, not only sequentially, but in
a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can
maintain the same based on its own evaluation of the situation
on the ground, a power that the President does not have.
Consequently, although the Constitution reserves to the
Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a proper suit,
it is implicit that the Court must allow Congress to exercise its
own review powers, which is automatic rather than
initiated. Only when Congress defaults in its express duty to
defend the Constitution through such review should the
Supreme Court step in as its final rampart. The constitutional
validity of the Presidents proclamation of martial law or
suspension of the writ of habeas corpus is first a political
question in the hands of Congress before it becomes a
justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959
before the joint houses of Congress, which had in fact
convened, could act on the same. Consequently, the petitions
in these cases have become moot and the Court has nothing
to review. The lifting of martial law and restoration of the
privilege of the writ of habeas corpus in Maguindanao was a
supervening event that obliterated any justiciable
controversy.[2]
Two. Since President Arroyo withdrew her proclamation of
martial law and suspension of the privilege of the writ
of habeas corpus in just eight days, they have not been
meaningfully implemented. The military did not take over the
operation and control of local government units in
Maguindanao. The President did not issue any law or decree
affecting Maguindanao that should ordinarily be enacted by
Congress. No indiscriminate mass arrest had been
reported. Those who were arrested during the period were
either released or promptly charged in court. Indeed, no
petition for habeas corpus had been filed with the Court
respecting arrests made in those eight days. The point is that
the President intended by her action to address an uprising in
a relatively small and sparsely populated province. In her
judgment, the rebellion was localized and swiftly disintegrated
in the face of a determined and amply armed government
presence.
In Lansang v. Garcia,[3] the Court received evidence in
executive session to determine if President Marcos
suspension of the privilege of the writ of habeas corpus in 1971
had sufficient factual basis. In Aquino, Jr. v. Enrile,[4] while the
Court took judicial notice of the factual bases for President
Marcos proclamation of martial law in 1972, it still held hearings
on the petitions for habeas corpus to determine the
constitutionality of the arrest and detention of the
petitioners. Here, however, the Court has not bothered to
examine the evidence upon which President Arroyo acted in
issuing Proclamation 1959, precisely because it felt no need
to, the proclamation having been withdrawn within a few days
of its issuance.
Justice Antonio T. Carpio points out in his dissenting opinion
the finding of the Regional Trial Court (RTC) of Quezon City
that no probable cause exist that the accused before it
committed rebellion in Maguindanao since the prosecution
failed to establish the elements of the crime. But the Court
cannot use such finding as basis for striking down the
Presidents proclamation and suspension. For, firstly, the Court
did not delegate and could not delegate to the RTC of Quezon
City its power to determine the factual basis for the presidential
proclamation and suspension. Secondly, there is no showing
that the RTC of Quezon City passed upon the same evidence
that the President, as Commander-in-Chief of the Armed
Forces, had in her possession when she issued the
proclamation and suspension.
The Court does not resolve purely academic
questions to satisfy scholarly interest, however intellectually
challenging these are.[5] This is especially true, said the Court
in Philippine Association of Colleges and
Universities v. Secretary of
Education,[6] where the issues reach constitutional
dimensions, for then there comes into play regard for the courts
duty to avoid decision of constitutional issues unless
avoidance becomes evasion. The Courts duty is to steer clear
of declaring unconstitutional the acts of the Executive or the
Legislative department, given the assumption that it carefully
studied those acts and found them consistent with the
fundamental law before taking them. To doubt is to sustain. [7]
Notably, under Section 18, Article VII of the 1987
Constitution, the Court has only 30 days from the filing of an
appropriate proceeding to review the sufficiency of the factual
basis of the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus. Thus
The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the
proclamation of martial law or the
suspension of the privilege of the writ
of habeas corpus or the extension thereof,
and must promulgate its decision
thereon within thirty days from its filing.
(Emphasis supplied)
More than two years have passed since petitioners
filed the present actions to annul Proclamation 1959. When the
Court did not decide it then, it actually opted for a default as
was its duty, the question having become moot and academic.
Justice Carpio of course points out that should the
Court regard the powers of the President and Congress
respecting the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus as sequential or joint,
it would be impossible for the Court to exercise its power of
review within the 30 days given it.
But those 30 days, fixed by the Constitution, should
be enough for the Court to fulfill its duty without pre-empting
congressional action. Section 18, Article VII, requires the
President to report his actions to Congress, in person or in
writing, within 48 hours of such proclamation or suspension. In
turn, the Congress is required to convene without need of a call
within 24 hours following the Presidents proclamation or
suspension. Clearly, the Constitution calls for quick action on
the part of the Congress. Whatever form that action takes,
therefore, should give the Court sufficient time to fulfill its own
mandate to review the factual basis of the proclamation or
suspension within 30 days of its issuance.
If the Congress procrastinates or altogether fails to
fulfill its duty respecting the proclamation or suspension within
the short time expected of it, then the Court can step in, hear
the petitions challenging the Presidents action, and ascertain
if it has a factual basis. If the Court finds none, then it can annul
the proclamation or the suspension. But what if the 30 days
given it by the Constitution proves inadequate? Justice Carpio
himself offers the answer in his dissent: that 30-day period
does not operate to divest this Court of its jurisdiction over the
case. The settled rule is that jurisdiction once acquired is not
lost until the case has been terminated.
The problem in this case is that the President aborted
the proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in Maguindanao in just
eight days. In a real sense, the proclamation and the
suspension never took off. The Congress itself adjourned
FINALS CONSTITUTION I ACJUCO 258

without touching the matter, it having become moot and

academic.

Of course, the Court has in exceptional cases passed

upon issues that ordinarily would have been regarded as
moot. But the present cases do not present sufficient basis for
the exercise of the power of judicial review. The proclamation
of martial law and the suspension of the privilege of the writ
of habeas corpus in this case, unlike similar Presidential acts
in the late 60s and early 70s, appear more like saber-rattling
than an actual deployment and arbitrary use of political power.

WHEREFORE, the Court DISMISSES the

consolidated petitions on the ground that the same have
become moot and academic.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 259
SPOUSES RENATO G.R. No. 106064
CONSTANTINO, JR. and
LOURDES CONSTANTINO Present:
and their minor children
RENATO REDENTOR, DAVIDE, JR., CJ.,
ANNA MARIKA LISSA, PUNO,
NINA ELISSA, and PANGANIBAN,
ANNA KARMINA, QUISUMBING,
FREEDOM FROM DEBT YNARES-SANTIAGO,
COALITION, and FILOMENO SANDOVAL-GUTIERREZ,
STA. ANA III, CARPIO,
Petitioners , AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
CALLEJO, SR.,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
HON. JOSE B. CUISIA,
in his capacity as Governor
of the Central Bank,
HON. RAMON DEL ROSARIO,
in his capacity as Secretary
of Finance, HON. EMMANUEL V.
PELAEZ, in his capacity as
Philippine Debt Negotiating
Chairman, and the NATIONAL Promulgated:
TREASURER,
Respondents. October 13, 2005
x-------------------------------------------------------------------x
DECISION
TINGA, J.:
The quagmire that is the foreign debt problem has
especially confounded developing nations around the world for
decades. It has defied easy solutions acceptable both to debtor
countries and their creditors. It has also emerged as cause
celebre for various political movements and grassroots
activists and the wellspring of much scholarly thought and
debate.
The present petition illustrates some of the
ideological and functional differences between experts on how
to achieve debt relief. However, this being a court of law, not
an academic forum or a convention on development
economics, our resolution has to hinge on the presented legal
issues which center on the appreciation of the constitutional
provision that empowers the President to contract and
guarantee foreign loans. The ultimate choice is between a
restrictive reading of the constitutional provision and an
alimentative application thereof consistent with time-honored
principles on executive power and the alter ego doctrine.
This Petition for Certiorari, Prohibition and
Mandamus assails said contracts which were entered into
pursuant to the Philippine Comprehensive Financing Program
for 1992 (Financing Program or Program). It seeks to enjoin
respondents from executing additional debt-relief contracts
pursuant thereto. It also urges the Court to issue an order
compelling the Secretary of Justice to institute criminal and
administrative cases against respondents for acts which
circumvent or negate the provisions Art. XII of the
Constitution.[1]
Parties and Facts
The petition was filed on 17 July 1992 by petitioners
spouses Renato Constantino, Jr. and Lourdes Constantino
and their minor children, Renato Redentor, Anna Marika Lissa,
Nina Elissa, and Anna Karmina, Filomeno Sta. Ana III, and the
Freedom from Debt Coalition, a non-stock, non-profit, non-
government organization that advocates a pro-people and just
Philippine debt policy.[2] Named respondents were the then
Governor of the Bangko Sentral ng Pilipinas, the Secretary of
Finance, the National Treasurer, and the Philippine Debt
Negotiation Chairman Emmanuel V. Pelaez.[3] All respondents
were members of the Philippine panel tasked to negotiate with
the countrys foreign creditors pursuant to the Financing
Program.
The operative facts are sparse and there is little need
to elaborate on them.
The Financing Program was the culmination of
efforts that began during the term of former President Corazon
Aquino to manage the countrys external debt problem through
a negotiation-oriented debt strategy involving cooperation and
negotiation with foreign creditors.[4]Pursuant to this strategy,
the Aquino government entered into three restructuring
agreements with representatives of foreign creditor
governments during the period of 1986 to 1991. [5] During the
same period, three similarly-oriented restructuring agreements
were executed with commercial bank creditors.[6]
On 28 February 1992, the Philippine Debt
Negotiating Team, chaired by respondent Pelaez, negotiated
an agreement with the countrys Bank Advisory Committee,
representing all foreign commercial bank creditors, on the
Financing Program which respondents characterized as a
multi-option financing
package.[7] The Program was scheduled to be executed on 24
July 1992 by respondents in behalf of the Republic.
Nonetheless, petitioners alleged that even prior to the
execution of the Program respondents had already
implemented its buyback component when on 15 May 1992,
the Philippines bought back P1.26 billion of external debts
pursuant to the Program.[8]
The petition sought to enjoin the ratification of the
Program, but the Court did not issue any injunctive relief.
Hence, it came to pass that the Program was signed
in London as scheduled. The petition still has to be resolved
though as petitioners seek the annulment of
any and all acts done by respondents, their subordinates and
any other public officer pursuant to the agreement and program
in question.[9]Even after the signing of the
Program, respondents themselves acknowledged that the
remaining principal objective of the petition is to set aside
respondents actions.[10]
Petitioners characterize the Financing Program as a
package offered to the countrys foreign creditors consisting of
two debt-relief options.[11] The first option was a cash buyback
of portions of the Philippine foreign debt at a discount. [12] The
second option allowed creditors to convert existing Philippine
debt instruments into any of three kinds of bonds/securities: (1)
new money bonds with a five-year grace period and 17 years
final maturity, the purchase of which would allow the creditors
to convert their eligible debt papers into bearer bonds with the
same terms; (2) interest-reduction bonds with a maturity of 25
years; and (3) principal-collateralized interest-reduction bonds
with a maturity of 25 years.[13]
On the other hand, according to respondents the Financing
Program would cover about U.S. $5.3 billion of foreign
commercial debts and it was expected to deal
comprehensively with the commercial bank debt problem of
the country and pave the way for the countrys access to capital
markets.[14] They add that the Program carried three basic
options from which foreign bank lenders could choose, namely:
FINALS CONSTITUTION I ACJUCO 260
to lend money, to exchange existing restructured Philippine
debts with an interest reduction bond; or to exchange the same
Philippine debts with a principal collateralized interest
reduction bond.[15]
Issues for Resolution
Petitioners raise several issues before this Court.
First, they object to the debt-relief contracts entered
into pursuant to the Financing Program as beyond the powers
granted to the President under Section 20,
Article VII of the Constitution.[16] The provision states that the
President may contract or guarantee foreign loans in behalf of
the Republic. It is claimed that the buyback and
securitization/bond conversion schemes are neither loans nor
guarantees, and hence beyond the power of the President to
execute.
Second, according to petitioners even assuming that
the contracts under the Financing Program are constitutionally
permissible, yet it is only the President who may exercise the
power to enter into these contracts and such power may not
be delegated to respondents.
Third, petitioners argue that the Financing Program
violates several constitutional policies and that contracts
executed or to be executed pursuant thereto were or will be
done by respondents with grave abuse of discretion amounting
to lack or excess of jurisdiction.
Petitioners contend that the Financing Program was
made available for debts that were either fraudulently
contracted or void. In this regard, petitioners rely on a 1992
Commission on Audit (COA) report which identified several
behest loans as either contracted or guaranteed fraudulently
during the Marcos regime.[17] They posit that since these and
other similar debts, such as the ones pertaining to the Bataan
Nuclear Power Plant,[18] were eligible for buyback or
conversion under the Program, the resultant relief agreements
pertaining thereto would be void for being waivers of the
Republics right to repudiate the void or fraudulently contracted
loans.
For their part, respondents dispute the points raised by
petitioners. They also question the standing of petitioners to
institute the present petition and the justiciability of the issues
presented.
The Court shall tackle the procedural questions ahead of the
substantive issues.
The Courts Rulings
Standing of Petitioners
The individual petitioners are suing as citizens of
the Philippines; those among them who are of age are suing in
their additional capacity as taxpayers. [19] It is not indicated in
what capacity the Freedom from Debt Coalition is suing.
Respondents point out that petitioners have no
standing to file the present suit since the rule allowing
taxpayers to assail executive or legislative acts has been
applied only to cases where the constitutionality of a statute is
involved. At the same time, however, they urge this Court to
exercise its wide discretion and waive petitioners lack of
standing. They invoke the transcendental importance of
resolving the validity of the questioned debt-relief contracts
and others of similar import.
The recent trend on locus standi has veered towards
a liberal treatment in taxpayers suits. In Tatad v. Garcia
Jr.,[20] this Court reiterated that the prevailing doctrines in
taxpayers suits are to allow taxpayers to question contracts
entered into by the national government or government owned
and controlled corporations allegedly in contravention of
law.[21] A taxpayer is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is
being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid
or unconstitutional law.[22]
Moreover, a ruling on the issues of this case will not
only determine the validity or invalidity of the subject pre-
termination and bond-conversion of foreign debts but also
create a precedent for other debts or debt-related contracts
executed or to be executed in behalf of the President of the
Philippines by the Secretary of Finance. Considering
the reported Philippine debt of P3.80 trillion as of November
2004, the foreign public borrowing component of which
reached P1.81 trillion in November, equivalent to 47.6% of
total government borrowings,[23] the importance of the issues
raised and the magnitude of the public interest involved are
indubitable.
Thus, the Courts cognizance of this petition is also
based on the consideration that the determination of the issues
presented will have a bearing on the state of the countrys
economy, its international financial ratings, and perhaps even
the Filipinos way of life. Seen in this light, the transcendental
importance of the issues herein presented cannot be doubted.
Where constitutional issues are properly raised in the
context of alleged facts, procedural questions acquire a
relatively minor significance.[24] We thus hold that by the very
nature of the power wielded by the President, the effect of
using this power on the economy, and the well-being in general
of the Filipino nation, the Court must set aside the procedural
barrier of standing and rule on the justiciable issues presented
by the parties.
Ripeness/Actual Case Dimension
Even as respondents concede the transcendental
importance of the issues at bar, in their Rejoinder they ask this
Court to dismiss the Petition. Allegedly, petitioners arguments
are mere attempts at abstraction.[25] Respondents are correct
to some degree. Several issues, as shall be discussed in due
course, are not ripe for adjudication.
The allegation that respondents waived the
Philippines right to repudiate void and fraudulently contracted
loans by executing the debt-relief agreements is, on many
levels, not justiciable.
In the first place, records do not show whether the
so-called behest loansor other allegedly void or fraudulently
contracted loans for that matterwere subject of the debt-relief
contracts entered into under the Financing Program.
Moreover, asserting a right to repudiate void or
fraudulently contracted loans begs the question of whether
indeed particular loans are void or fraudulently contracted.
Fraudulently contracted loans are voidable and, as such, valid
and enforceable until annulled by the courts. On the other
hand, void contracts that have already been fulfilled must be
declared void in view of the maxim that no one is allowed to
take the law in his own hands.[26] Petitioners theory depends
on a prior annulment or declaration of nullity of the pre-existing
loans, which thus far have not been submitted to this Court.
Additionally, void contracts are unratifiable by their very nature;
they are null and void ab initio. Consequently, from the
viewpoint of civil law, what petitioners present as the Republics
right to repudiate is yet a contingent right, one which cannot be
allowed as an anticipatory basis for annulling the debt-relief
contracts. Petitioners contention that the debt-relief
FINALS CONSTITUTION I ACJUCO 261
agreements are tantamount to waivers of the Republics right
to repudiate so-called behest loans is without legal foundation.
It may not be amiss to recognize that there are many
advocates of the position that the Republic should renege on
obligations that are considered as illegitimate. However,
should the executive branch unilaterally, and possibly even
without prior court determination of the validity or invalidity of
these contracts, repudiate or otherwise declare to the
international community its resolve not to recognize a certain
set of illegitimate loans, adverse repercussions [27] would come
into play. Dr. Felipe Medalla, former Director General of the
National Economic Development Authority, has warned, thus:
One way to reduce debt service is
to repudiate debts, totally or selectively.
Taken to its limit, however, such a strategy
would put the Philippines at such odds with
too many enemies. Foreign commercial
banks by themselves and without the
cooperation of creditor governments,
especially the United States, may not be in
a position to inflict much damage, but
concerted sanctions from commercial
banks, multilateral financial institutions and
creditor governments would affect not only
our sources of credit but also our access to
markets for our exports and the level of
development assistance. . . . [T]he country
might face concerted sanctions even if
debts were repudiated only selectively.
The point that must be stressed is
that repudiation is not an attractive
alternative if net payments to creditors in
the short and medium-run can be reduced
through an agreement (as opposed to a
unilaterally set ceiling on debt service
payments) which provides for both
rescheduling of principal and capitalization
of interest, or its equivalent in new loans,
which would make it easier for the country
to pay interest.[28]
Sovereign default is not new to the Philippine setting.
In October 1983, the Philippines declared a moratorium on
principal payments on its external debts that eventually
lasted four years,[29] that virtually closed the countrys access to
new foreign money[30] and drove investors to leave the
Philippine market, resulting in some devastating
consequences.[31] It would appear then that this beguilingly
attractive and dangerously simplistic solution deserves the
utmost circumspect cogitation before it is resorted to.
In any event, the discretion on the matter lies not with
the courts but with the executive. Thus, the Program was
conceptualized as an offshoot of the decision made by then
President Aquino that the Philippines should recognize its
sovereign debts[32] despite the controversy that engulfed many
debts incurred during the Marcos era. It is a scheme whereby
the Philippines restructured its debts following a negotiated
approach instead of a default approach to manage the bleak
Philippine debt situation.
As a final point, petitioners have no real basis to fret
over a possible waiver of the right to repudiate void contracts.
Even assuming that spurious loans had become the subject of
debt-relief contracts, respondents unequivocally assert that the
Republic did not waive any right to repudiate void or
fraudulently contracted loans, it having incorporated a no-
waiver clause in the agreements.[33]
Substantive Issues
It is helpful to put the matter in perspective before moving on
to the merits. The Financing Program extinguished portions of
the countrys pre-existing loans
through either debt buyback or bond-conversion. The buyback
approach essentially pre-terminated portions of public debts
while the bond-conversion scheme extinguished public debts
through the obtention of a new loan by virtue of a sovereign
bond issuance, the proceeds of which in turn were used for
terminating the original loan.
First Issue: The Scope of Section 20, Article VII
For their first constitutional argument, petitioners
submit that the buyback and bond-conversion schemes do not
constitute the loan contract or guarantee contemplated in the
Constitution and are consequently prohibited. Sec. 20, Art. VII
of the Constitution provides, viz:
The President may contract or
guarantee foreign loans in behalf of the
Republic of the Philippines with the prior
concurrence of the Monetary Board and
subject to such limitations as may be
provided under law. The Monetary Board
shall, within thirty days from the end of
every quarter of the calendar year, submit
to the Congress a complete report of its
decisions on applications for loans to be
contracted or guaranteed by the
government or government-owned and
controlled corporations which would have
the effect of increasing the foreign debt,
and containing other matters as may be
provided by law.
On Bond-conversion
Loans are transactions wherein the owner of a
property allows another party to use the property and where
customarily, the latter promises to return the property after a
specified period with payment for its use, called interest. [34] On
the other hand, bonds are interest-bearing or discounted
government or corporate securities that obligate the issuer to
pay the bondholder a specified sum of money, usually at
specific intervals, and to repay the principal amount of the loan
at maturity.[35] The word bond means contract, agreement, or
guarantee. All of these terms are applicable to the securities
known as bonds. An investor who purchases a bond is lending
money to the issuer, and the bond represents the issuers
contractual promise to pay interest and repay principal
according to specific terms. A short-term bond is often called a
note.[36]
The language of the Constitution is simple and
clear as it is broad. It allows the President to contract and
guarantee foreign loans. It makes no prohibition on the
issuance of certain kinds of loans or distinctions as to
which kinds of debt instruments are more onerous than
others. This Court may not ascribe to the Constitution
meanings and restrictions that would unduly burden the
powers of the President. The plain, clear and
unambiguous language of the Constitution should be
FINALS CONSTITUTION I ACJUCO 262
construed in a sense that will allow the full exercise of the
power provided therein. It would be the worst kind of
judicial legislation if the courts were to misconstrue and
change the meaning of the organic act.
The only restriction that the Constitution provides,
aside from the prior concurrence of the Monetary Board, is that
the loans must be subject to limitations provided by law. In this
regard, we note that Republic Act (R.A.) No. 245 as amended
by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act
Authorizing the Secretary of Finance to Borrow to Meet Public
Expenditures Authorized by Law, and for Other
Purposes, allows foreign loans to be contracted in the form
of, inter alia, bonds. Thus:
Sec. 1. In order to meet public expenditures
authorized by law or to provide for the
purchase, redemption, or refunding of any
obligations, either direct or guaranteed of
the Philippine Government, the Secretary
of Finance, with the approval of the
President of the Philippines, after
consultation with the Monetary Board,
is authorized to borrow from time to
time on the credit of the Republic of the
Philippines such sum or sums as in his
judgment may be necessary, and to
issue therefor evidences of
indebtedness of the Philippine
Government."
Such evidences of indebtedness may be
of the following types:
....
c. Treasury bonds, notes, securities or
other evidences of indebtedness having
maturities of one year or more but not
exceeding twenty-five years from the
date of issue. (Emphasis supplied.)
Under the foregoing provisions, sovereign bonds
may be issued not only to supplement government
expenditures but also to provide for the
purchase,[37] redemption,[38] or refunding[39] of any obligation,
either direct or guaranteed, of the Philippine Government.
Petitioners, however, point out that a supposed
difference between contracting a loan and issuing bonds is that
the former creates a definite creditor-debtor relationship
between the parties while the latter does not.[40] They explain
that a contract of loan enables the debtor to restructure or
novate the loan, which benefit is lost upon the conversion of
the debts to bearer bonds such that the Philippines surrenders
the novatable character of a loan contract for the irrevocable
and unpostponable demandability of a bearer
bond.[41] Allegedly, the Constitution prohibits the President
from issuing bonds which are far more onerous than loans. [42]
This line of thinking is flawed to say the least. The
negotiable character of the subject bonds is not mutually
exclusive with the Republics freedom to negotiate with
bondholders for the revision of the terms of the debt. Moreover,
the securities market provides some flexibilityif the Philippines
wants to pay in advance, it can buy out its bonds in the market;
if interest rates go down but the Philippines does not have
money to retire the bonds, it can replace the old bonds with
new ones; if it defaults on the bonds, the bondholders shall
organize and bring about a re-negotiation or settlement.[43] In
fact, several countries have restructured their sovereign bonds
in view either of
inability and/or unwillingness to pay the
indebtedness.[44] Petitioners have not presented a plausible
reason that would preclude the Philippines from acting in a
similar fashion, should it so opt.
This theory may even be dismissed in a
perfunctory manner since petitioners are merely
expecting that the Philippines would opt to restructure the
bonds but with the negotiable character of the bonds,
would be prevented from so doing. This is a contingency
which petitioners do not assert as having come to pass or
even imminent. Consummated acts of the executive
cannot be struck down by this Court merely on the basis
of petitioners anticipatory cavils.
On the Buyback Scheme
In their Comment, petitioners assert that the power to
pay public debts lies with Congress and was deliberately
withheld by the Constitution from the President. [45] It is true that
in the balance of power between the three branches of
government, it is Congress that manages the countrys coffers
by virtue of its taxing and spending powers. However, the law-
making authority has promulgated a law ordaining an
automatic appropriations provision for debt servicing[46] by
virtue of which the President is empowered to execute debt
payments without the need for further appropriations.
Regarding these legislative enactments, this Court has
held, viz:
Congress deliberates or acts on the budget
proposals of the President, and Congress
in the exercise of its own judgment and
wisdom formulates an appropriation act
precisely following the process established
by the Constitution, which specifies that no
money may be paid from the Treasury
except in accordance with an appropriation
made by law.
Debt service is not included in the General
Appropriation Act, since authorization
therefor already exists under RA Nos. 4860
and 245, as amended, and PD 1967.
Precisely in the light of this subsisting
authorization as embodied in said Republic
Acts and PD for debt service, Congress
does not concern itself with details for
implementation by the Executive, but
largely with annual levels and approval
thereof upon due deliberations as part of
the whole obligation program for the year.
Upon such approval, Congress has spoken
and cannot be said to have delegated its
wisdom to the Executive, on whose part lies
the implementation or execution of the
legislative wisdom.[47]
Specific legal authority for the buyback of loans is established
under Section 2 of Republic Act (R.A.) No. 240, viz:
Sec. 2. The Secretary of
Finance shall cause to be paid
out of any moneys in the
National Treasury not
otherwise appropriated, or
from any sinking funds
FINALS CONSTITUTION I ACJUCO 263
provided for the purpose by
law, any interest falling due, or
accruing, on any portion of the
public debt authorized by law.
He shall also cause to be paid
out of any such money, or from
any such sinking funds the
principal amount of any
obligations which have
matured, or which have been
called for redemption or for which
redemption has been demanded
in accordance with terms
prescribed by him prior to date of
issue: Provided, however, That
he may, if he so chooses and if
the holder is willing, exchange
any such obligation with any
other direct or guaranteed
obligation or obligations of the
Philippine Government of
equivalent value. In the case of
interest-bearing obligations, he
shall pay not less than their face
value; in the case of obligations
issued at a discount he shall pay
the face value at maturity; or, if
redeemed prior to maturity,
such portion of the face value
as is prescribed by the terms
and conditions under which
such obligations were
originally issued. (Emphasis
supplied.)
The afore-quoted provisions of law specifically allow the
President to pre-terminate debts without further action from
Congress.
Petitioners claim that the buyback scheme is neither
a guarantee nor a loan since its underlying intent is to
extinguish debts that are not yet due and
demandable.[48] Thus, they suggest that contracts entered
pursuant to the buyback scheme are unconstitutional for not
being among those contemplated in Sec. 20, Art. VII of the
Constitution.
Buyback is a necessary power which springs from
the grant of the foreign borrowing power. Every statute is
understood, by implication, to contain all such provisions as
may be necessary to effectuate its object and purpose, or to
make effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its
terms.[49] The President is not empowered to borrow money
from foreign banks and governments on the credit of the
Republic only to be left bereft of authority to implement the
payment despite appropriations therefor.
Even petitioners concede that [t]he Constitution, as a
rule, does not enumeratelet alone enumerate allthe acts which
the President (or any other public officer) may not
do,[50] and [t]he fact that the Constitution does not explicitly bar
the President from exercising a power does not mean that he
or she does not have that power.[51] It is inescapable from the
standpoint of reason and necessity that the authority to
contract foreign loans and guarantees without restrictions on
payment or manner thereof coupled with the availability of the
corresponding appropriations, must include the power to effect
payments or to make payments unavailing by either
restructuring the loans or even refusing to make any payment
altogether.
More fundamentally, when taken in the context of
sovereign debts, a buyback is simply the purchase by the
sovereign issuer of its own debts at a discount. Clearly then,
the objection to the validity of the buyback scheme is without
basis.
Second Issue: Delegation of Power
Petitioners stress that unlike other powers which may
be validly delegated by the President, the power to incur
foreign debts is expressly reserved by the Constitution in the
person of the President. They argue that the gravity by which
the exercise of the power will affect the Filipino nation requires
that the President alone must exercise this power. They submit
that the requirement of prior concurrence of an entity
specifically named by the Constitutionthe Monetary
Boardreinforces the submission that not respondents but the
President alone and personally can validly bind the country.
Petitioners position is negated both by explicit
constitutional[52] and legal[53] imprimaturs, as well as the
doctrine of qualified political agency.
The evident exigency of having the Secretary of
Finance implement the decision of the President to execute the
debt-relief contracts is made manifest by the fact that the
process of establishing and executing a strategy for managing
the governments debt is deep within the realm of the expertise
of the Department of Finance, primed as it is to raise the
required amount of funding, achieve its risk and cost
objectives, and meet any other sovereign debt management
goals.[54]
If, as petitioners would have it, the President
were to personally exercise every aspect of the foreign
borrowing power, he/she would have to pause from
running the country long enough to focus on a welter of
time-consuming detailed activitiesthe propriety of
incurring/guaranteeing loans, studying and choosing
among the many methods that may be taken toward this
end, meeting countless times with creditor
representatives to negotiate, obtaining the concurrence of
the Monetary Board, explaining and defending the
negotiated deal to the public, and more often than not,
flying to the agreed place of execution to sign the
documents. This sort of constitutional interpretation would
negate the very existence of cabinet positions and the
respective expertise which the holders thereof are
accorded and would unduly hamper the Presidents
effectivity in running the government.
Necessity thus gave birth to the doctrine of qualified
political agency, later adopted in Villena v. Secretary of
the Interior[55] from American jurisprudence, viz:
With reference to the Executive
Department of the government, there is
one purpose which is crystal-clear and is
readily visible without the projection of
judicial searchlight, and that is the
establishment of a single, not plural,
Executive. The first section of Article VII of
the Constitution, dealing with the Executive
Department, begins with the enunciation of
the principle that "The executive power
shall be vested in a President of
the Philippines." This means that the
President of the Philippines is the
Executive of the Government of
the Philippines, and no other. The heads of
FINALS CONSTITUTION I ACJUCO 264
the executive departments occupy political
positions and hold office in an advisory
capacity, and, in the language of Thomas
Jefferson, "should be of the President's
bosom confidence" (7 Writings, Ford ed.,
498), and, in the language of Attorney-
General Cushing (7 Op., Attorney-General,
453), "are subject to the direction of the
President." Without minimizing the
importance of the heads of the various
departments, their personality is in reality
but the projection of that of the President.
Stated otherwise, and as forcibly
characterized by Chief Justice Taft of the
Supreme Court of the United States, "each
head of a department is, and must be, the
President's alter ego in the matters of that
department where the President is required
by law to exercise authority" (Myers vs.
United States, 47 Sup. Ct. Rep., 21 at 30;
272 U. S., 52 at 133; 71 Law. ed., 160).[56]
As it was, the backdrop consisted of a major policy
determination made by then President Aquino that sovereign
debts have to be respected and the concomitant reality that
the Philippines did not have enough funds to pay the debts.
Inevitably, it fell upon the Secretary of Finance, as the alter
ego of the President regarding the sound and efficient
management of the financial resources of the
Government,[57] to formulate a scheme for the implementation
of the policy publicly expressed by the President herself.
Nevertheless, there are powers vested in the
President by the Constitution which may not be delegated to or
exercised by an agent or alter ego of the President. Justice
Laurel, in his ponencia in Villena, makes this clear:
Withal, at first blush, the argument of
ratification may seem plausible under the
circumstances, it should be observed that
there are certain acts which, by their very
nature, cannot be validated by subsequent
approval or ratification by the President.
There are certain constitutional powers and
prerogatives of the Chief Executive of the
Nation which must be exercised by him in
person and no amount of approval or
ratification will validate the exercise of any
of those powers by any other person. Such,
for instance, in his power to suspend the
writ of habeas corpus and proclaim martial
law (PAR. 3, SEC. 11, Art. VII) and the
exercise by him of the benign prerogative
of mercy (par. 6, sec. 11, idem).[58]
These distinctions hold true to this day. There are certain
presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension
of fundamental freedoms, or at least call for the supersedence
of executive prerogatives over those exercised by co-equal
branches of government. The declaration of martial law, the
suspension of the writ of habeas corpus, and the exercise of
the pardoning power notwithstanding the judicial determination
of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means
exclusive, but there must be a showing that the executive
power in question is of similar gravitas and exceptional import.
We cannot conclude that the power of the President
to contract or guarantee foreign debts falls within the same
exceptional class. Indubitably, the decision to contract or
guarantee foreign debts is of vital public interest, but only
akin to any contractual obligation undertaken by the sovereign,
which arises not from any extraordinary incident, but from the
established functions of governance.
Another important qualification must be made. The
Secretary of Finance or any designated alter ego of the
President is bound to secure the latters prior consent to or
subsequent ratification of his acts. In the matter of contracting
or guaranteeing foreign loans, the repudiation by the President
of the very acts performed in this regard by the alter ego will
definitely have binding effect. Had petitioners herein
succeeded in demonstrating that the President actually
withheld approval and/or repudiated the Financing Program,
there could be a cause of action to nullify the acts of
respondents. Notably though, petitioners do not assert that
respondents pursued the Program without prior authorization
of the President or that the terms of the contract were agreed
upon without the Presidents authorization. Congruent with the
avowed preference of then President Aquino to honor and
restructure existing foreign debts, the lack of showing that she
countermanded the acts of respondents leads us to conclude
that said acts carried presidential approval.
With constitutional parameters already established,
we may also note, as a source of suppletory guidance, the
provisions of R.A. No. 245. The afore-quoted Section 1 thereof
empowers the Secretary of Finance with the approval of the
President and after consultation[59] of the Monetary Board, to
borrow from time to time on the credit of the Republic of the
Philippines such sum or sums as in his judgment may be
necessary, and to issue therefor evidences of indebtedness of
the Philippine Government. Ineluctably then, while the
President wields the borrowing power it is the Secretary of
Finance who normally carries out its thrusts.
In our recent rulings in Southern Cross Cement
Corporation v. The Philippine Cement Manufacturers
Corp.,[60] this Court had occasion to examine the authority
granted by Congress to the Department of Trade and Industry
(DTI) Secretary to impose safeguard measures pursuant to the
Safeguard Measures Act. In doing so, the Court was impelled
to construe Section 28(2), Article VI of the Constitution, which
allowed Congress, by law, to authorize the President to fix
within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government.[61]
While the Court refused to uphold the broad
construction of the grant of power as preferred by the DTI
Secretary, it nonetheless tacitly acknowledged that Congress
could designate the DTI Secretary, in his capacity as alter
ego of the President, to exercise the authority vested on the
chief executive under Section 28(2), Article VI.[62] At the same
time, the Court emphasized that since Section 28(2), Article VI
authorized Congress to impose limitations and restrictions on
the authority of the President to impose tariffs and imposts, the
DTI Secretary was necessarily subjected to the same
restrictions that Congress could impose on the President in the
exercise of this taxing power.
Similarly, in the instant case, the Constitution
allocates to the President the exercise of the foreign borrowing
power subject to such limitations as may be provided under
FINALS CONSTITUTION I ACJUCO 265
law. Following Southern Cross, but in line with the limitations
as defined in Villena, the presidential prerogative may be
exercised by the Presidents alter ego, who in this case is the
Secretary of Finance.
It bears emphasis that apart from the Constitution,
there is also a relevant statute, R.A. No. 245, that establishes
the parameters by which the alter ego may act in behalf of the
President with respect to the borrowing power. This law
expressly provides that the Secretary of Finance may enter into
foreign borrowing contracts. This law neither amends nor goes
contrary to the Constitution but merely implements the subject
provision in a manner consistent with the structure of the
Executive Department and the alter ego doctine. In this regard,
respondents have declared that they have followed the
restrictions provided under R.A. No. 245, [63] which include the
requisite presidential authorization and which, in the absence
of proof and even allegation to the contrary, should be
regarded in a fashion congruent with the presumption of
regularity bestowed on acts done by public officials.
Moreover, in praying that the acts of the
respondents, especially that of the Secretary of Finance,
be nullified as being in violation of a restrictive
constitutional interpretation, petitioners in effect would
have this Court declare R.A. No. 245 unconstitutional. We
will not strike
down a law or provisions thereof without so much as a
direct attack thereon when simple and logical statutory
construction would suffice.
Petitioners also submit that the unrestricted character of the
Financing Program violates the framers intent behind Section
20, Article VII to restrict the power of the President. This intent,
petitioners note, is embodied in the proviso in Sec. 20, Art. VII,
which states that said power is subject to such limitations as
may be provided under law. However, as previously discussed,
the debt-relief contracts are governed by the terms of R.A. No.
245, as amended by P.D. No. 142 s. 1973, and therefore were
not developed in an unrestricted setting.
Third Issue: Grave Abuse of Discretion and
Violation of Constitutional Policies
We treat the remaining issues jointly, for in view of the
foregoing determination, the general allegation of grave abuse
of discretion on the part of respondents would arise from the
purported violation of various state policies as expressed in the
Constitution.
Petitioners allege that the Financing Program violates the
constitutional state policies to promote a social order that will
ensure the prosperity and independence of the nation and free
the people from poverty,[64] foster social justice in all phases of
national development,[65] and develop a self-reliant and
independent national economy effectively controlled by
Filipinos;[66] thus, the contracts executed or to be executed
pursuant thereto were or would be tainted by a grave abuse of
discretion amounting to lack or excess of jurisdiction.
Respondents cite the following in support of the propriety of
their acts:[67] (1) a Department of Finance study showing that
as a result of the implementation of voluntary debt reductions
schemes, the countrys debt stock was reduced by U.S. $4.4
billion as of December 1991; [68] (2) revelations made by
independent individuals made in a hearing before the Senate
Committee on Economic Affairs indicating that the assailed
agreements would bring about substantial benefits to the
country;[69] and (3) the Joint Legislative-Executive Foreign
Debt Councils endorsement of the approval of the financing
package containing the debt-
relief agreements and issuance of a Motion to Urge the
Philippine Debt Negotiating Panel to continue with the
negotiation on the aforesaid package. [70]
Even with these justifications, respondents aver that their acts
are within the arena of political questions which, based on the
doctrine of separation of powers,[71] the judiciary must leave
without interference lest the courts substitute their judgment for
that of the official concerned and decide a matter which by its
nature or law is for the latter alone to decide. [72]
On the other hand, in furtherance of their argument on
respondents violation of constitutional policies, petitioners cite
an article of Jude Esguerra, The 1992 Buyback and
Securitization Agreement with Philippine Commercial Bank
Creditors,[73] in illustrating a best-case scenario in entering the
subject debt-relief agreements. The computation results in a
yield of $218.99 million, rather
than the $2,041.00 million claimed by the debt
negotiators.[74] On the other hand, the worst-case scenario
allegedly is that a net amount of $1.638 million will flow out of
the country as a result of the debt package. [75]
Assuming the accuracy of the foregoing for the nonce, despite
the watered-down parameters of petitioners computations, we
can make no conclusion other than that respondents efforts
were geared towards debt-relief with marked positive results
and towards achieving the constitutional policies which
petitioners so hastily declare as having been violated by
respondents. We recognize that as with other schemes
dependent on volatile market and economic structures, the
contracts entered into by respondents may possibly have a net
outflow and therefore negative result. However, even
petitioners call this latter event the worst-case scenario. Plans
are seldom foolproof. To ask the Court to strike down debt-
relief contracts, which, according to independent third party
evaluations using historically-suggested rates would result in
substantial debt-relief,[76] based merely on the possibility of
petitioners worst-case scenario projection, hardly seems
reasonable.
Moreover, the policies set by the Constitution as litanized by
petitioners are not a panacea that can annul every
governmental act sought to be struck down. The gist of
petitioners arguments on violation of constitutional policies and
grave abuse of discretion boils down to their allegation that the
debt-relief agreements entered into by respondents do not
deliver the kind of debt-relief that petitioners would want.
Petitioners cite the aforementioned article in stating that that
the agreement achieves little that cannot be gained through
less complicated means like postponing (rescheduling)
principal payments,[77] thus:
[T]he price of success in putting together
this debt-relief package (indicates) the
possibility that a simple rescheduling
agreement may well turn out to be less
expensive than this comprehensive debt-
relief package. This means that in the next
six years the humble and simple
rescheduling process may well be the
lesser evil because there is that distinct
possibility that less money will flow out of
the country as a result.
FINALS CONSTITUTION I ACJUCO 266
Note must be taken that from these citations, petitioners submit
that there is possibly a better way to go about debt
rescheduling and, on that basis, insist that the acts of
respondents must be struck down. These are rather tenuous
grounds to condemn the subject agreements as violative of
constitutional principles.
Conclusion
The raison d etre of the Financing Program is to manage debts
incurred by the Philippines in a manner that will lessen the
burden on the Filipino taxpayersthus the term debt-relief
agreements. The measures objected to by petitioners were not
aimed at incurring more debts but at terminating pre-existing
debts and were backed by the know-how of the countrys
economic managers as affirmed by third party empirical
analysis.
That the means employed to achieve the goal of
debt-relief do not sit well with petitioners is beyond the power
of this Court to remedy. The exercise of the power of judicial
review is merely to checknot supplantthe Executive, or to
simply ascertain whether he has gone beyond the
constitutional limits of his jurisdiction but not to exercise the
power vested in him or to determine the wisdom of his act.[78] In
cases where the main purpose is to nullify governmental acts
whether as unconstitutional or done with grave abuse of
discretion, there is a strong presumption in favor of the validity
of the assailed acts. The heavy onus is in on petitioners to
overcome the presumption of regularity.
We find that petitioners have not sufficiently
established any basis for the Court to declare the acts of
respondents as unconstitutional.
WHEREFORE the petition is hereby DISMISSED. No
costs.SO ORDERED.
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA,
FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN
MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA,
EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR.
ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
DEPARTMENT OF NATIONAL DEFENSE SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES
OF THE PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN),
REPRESENTED BY ITS SECRETARY GENERAL RENATO
M. REYES, JR., BAYAN MUNA PARTY-LIST
REPRESENTATIVES NERI J. COLMENARES AND
CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA
DE JESUS, ACT TEACHERS PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS
PARTY-LIST REPRESENTATIVE FERNANDO HICAP,
KABATAAN PARTY-LIST REPRESENTATIVE TERRY
RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN
(MAKABAYAN), REPRESENTED BY SATURNINO
OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA,
JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR
FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND)
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO,
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF
GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO,
AMBASSADOR LOURDES YPARRAGUIRRE,
AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF
JUSTICE UNDERSECRETARY FRANCISCO BARAAN III,
AND DND ASSISTANT SECRETARY FOR STRATEGIC
ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON
EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS
CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS
NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA
GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND
ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of
the Enhanced Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the United States
of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the
legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents. 4
A proper analysis of the issues requires this Court to lay down
at the outset the basic parameters of the constitutional powers
and roles of the President and the Senate in respect of the
above issues. A more detailed discussion of these powers and
roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS
OF THE PRESIDENT: DEFENSE, FOREIGN RELATIONS,
AND EDCA
A. The Prime Duty of the State and the Consolidation of
Executive Power in the President
FINALS CONSTITUTION I ACJUCO 267
Mataimtim kong pinanunumpaan (o pinatotohanan) na
tutuparin ko nang buong katapatan at sigasig ang aking mga
tungkulin bilang Pangulo (o Pangalawang Pangulo o
Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga
batas nito, magiging makatarungan sa bawat tao, at itatalaga
ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka
ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo
ng Pilipinas ayon sa Saligang Batas 5
The 1987 Constitution has "vested the executive power in the
President of the Republic of the Philippines." 6 While the
vastness of the executive power that has been consolidated in
the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the
government, of which the President is the head:
The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens may
be required, under conditions provided by law, to render
personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the
Philippines, the power to call upon the people to defend
the State, and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out
earnestly and effectively throughout the whole territory of the
Philippines in accordance with the constitutional provision on
national territory. Hence, the President of the Philippines, as
the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters
embraced therein and all other territories over which it has
sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial
sea, the seabed, the subsoil, the insular shelves, and other
submarine areas; and the waters around, between, and
connecting the islands of the archipelago, regardless of their
breadth and dimensions.8
To carry out this important duty, the President is equipped with
authority over the Armed Forces of the Philippines
(AFP),9 which is the protector of the people and the state. The
AFP's role is to secure the sovereignty of the State and the
integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order;
protect life, liberty, and property; and promote the general
welfare.11
In recognition of these powers, Congress has specified that the
President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats 12 and, in the
same vein, ensure that the country is adequately prepared for
all national and local emergencies arising from natural and
man-made disasters.13
To be sure, this power is limited by the Constitution itself. To
illustrate, the President may call out the AFP to prevent or
suppress instances of lawless violence, invasion or
rebellion,14 but not suspend the privilege of the writ of habeas
corpus for a period exceeding 60 days, or place the Philippines
or any part thereof under martial law exceeding that same
span. In the exercise of these powers, the President is also
duty-bound to submit a report to Congress, in person or in
writing, within 48 hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or
suspension. The same provision provides for the Supreme
Court's review of the factual basis for the proclamation or
suspension, as well as the promulgation of the decision within
30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ
in the conduct of foreign relations.15 Since every state has the
capacity to interact with and engage in relations with other
sovereign states,16 it is but logical that every state must vest in
an agent the authority to represent its interests to those other
sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to
the nation especially in times of war. It can only be entrusted
to that department of government which can act on the basis
of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials
regularly brief him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive military intelligence
data. In fine, the presidential role in foreign affairs is dominant
and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences. 17
The role of the President in foreign affairs is qualified by the
Constitution in that the Chief Executive must give paramount
importance to the sovereignty of the nation, the integrity of its
territory, its interest, and the right of the sovereign Filipino
people to self-determination.18 In specific provisions, the
President's power is also limited, or at least shared, as in
Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international
agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into
prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.
D. The relationship between the two major presidential
functions and the role of the Senate
Clearly, the power to defend the State and to act as its
representative in the international sphere inheres in the person
of the President. This power, however, does not crystallize into
absolute discretion to craft whatever instrument the Chief
Executive so desires. As previously mentioned, the Senate has
a role in ensuring that treaties or international agreements the
President enters into, as contemplated in Section 21 of Article
VII of the Constitution, obtain the approval of two-thirds of its
members.
Previously, treaties under the 1973 Constitution required
ratification by a majority of the Batasang Pambansa,19except
in instances wherein the President "may enter into international
treaties or agreements as the national welfare and interest may
require."20 This left a large margin of discretion that the
President could use to bypass the Legislature altogether. This
was a departure from the 1935 Constitution, which explicitly
gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the
Senate.21 The 1987 Constitution returned the Senate's
FINALS CONSTITUTION I ACJUCO 268
power22 and, with it, the legislative's traditional role in foreign
affairs.23
The responsibility of the President when it comes to treaties
and international agreements under the present Constitution is
therefore shared with the Senate. This shared role, petitioners
claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military
bases, and the transition to Philippine independence
The presence of the U.S. military forces in the country can be
traced to their pivotal victory in the 1898 Battle of Manila Bay
during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S.
upon its formal surrender a few months later. 25 By 1899, the
Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to
impose colonial control over the Philippine Islands, General
Emilio Aguinaldo immediately led the Filipinos into an all-out
war against the U.S.27 The Filipinos were ultimately defeated
in the Philippine-American War, which lasted until 1902 and led
to the downfall of the first Philippine Republic. 28 The Americans
henceforth began to strengthen their foothold in the
country.29 They took over and expanded the former Spanish
Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air
Base.30
When talks of the eventual independence of the Philippine
Islands gained ground, the U.S. manifested the desire to
maintain military bases and armed forces in the country. 31 The
U.S. Congress later enacted the Hare-Hawes-Cutting Act of
1933, which required that the proposed constitution of an
independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases. 32 The
Philippine Legislature rejected that law, as it also gave the U.S.
the power to unilaterally designate any part of Philippine
territory as a permanent military or naval base of the U.S.
within two years from complete independence. 33
The U.S. Legislature subsequently crafted another law called
the Tydings-McDuffie Act or the Philippine Independence Act
of 1934. Compared to the old Hare-Hawes-Cutting Act, the
new law provided for the surrender to the Commonwealth
Government of "all military and other reservations" of the U.S.
government in the Philippines, except "naval reservations and
refueling stations."34 Furthermore, the law authorized the U.S.
President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and
fueling stations within two years after the Philippines would
have gained independence.35 Under the Tydings-McDuffie Act,
the U.S. President would proclaim the American withdrawal
and surrender of sovereignty over the islands 10 years after
the inauguration of the new government in the
Philippines.36 This law eventually led to the promulgation of the
1935 Philippine Constitution.
The original plan to surrender the military bases changed. 37 At
the height of the Second World War, the Philippine and the
U.S. Legislatures each passed resolutions authorizing their
respective Presidents to negotiate the matter of retaining
military bases in the country after the planned withdrawal of the
U.S.38 Subsequently, in 1946, the countries entered into the
Treaty of General Relations, in which the U.S. relinquished all
control and sovereignty over the Philippine Islands, except the
areas that would be covered by the American military bases in
the country.39 This treaty eventually led to the creation of the
post-colonial legal regime on which would hinge the continued
presence of U.S. military forces until 1991: the Military Bases
Agreement (MBA) of 1947, the Military Assistance Agreement
of 1947, and the Mutual Defense Treaty (MDT) of 1951. 40
B. Former legal regime on the presence of U.S. armed
forces in the territory of an independent Philippines (1946-
1991)
Soon after the Philippines was granted independence, the two
countries entered into their first military arrangement pursuant
to the Treaty of General Relations - the 1947 MBA.41 The
Senate concurred on the premise of "mutuality of security
interest,"42 which provided for the presence and operation of
23 U.S. military bases in the Philippines for 99 years or until
the year 2046.43 The treaty also obliged the Philippines to
negotiate with the U.S. to allow the latter to expand the existing
bases or to acquire new ones as military necessity might
require.44
A number of significant amendments to the 1947 MBA were
made.45 With respect to its duration, the parties entered into
the Ramos-Rusk Agreement of 1966, which reduced the term
of the treaty from 99 years to a total of 44 years or until
1991.46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement
provided for the return to the Philippines of 17 U.S. military
bases covering a total area of 117,075 hectares.47 Twelve
years later, the U.S. returned Sangley Point in Cavite City
through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the
recognition of Philippine sovereignty over Clark and Subic
Bases and the reduction of the areas that could be used by the
U.S. military.49 The agreement also provided for the mandatory
review of the treaty every five years. 50 In 1983, the parties
revised the 1947 MBA through the Romualdez-Armacost
Agreement.51 The revision pertained to the operational use of
the military bases by the U.S. government within the context of
Philippine sovereignty,52 including the need for prior
consultation with the Philippine government on the former' s
use of the bases for military combat operations or the
establishment of long-range missiles.53
Pursuant to the legislative authorization granted under
Republic Act No. 9,54 the President also entered into the 1947
Military Assistance Agreement55 with the U.S. This executive
agreement established the conditions under which U.S.
military assistance would be granted to the
Philippines,56 particularly the provision of military arms,
ammunitions, supplies, equipment, vessels, services, and
training for the latter's defense forces.57 An exchange of notes
in 1953 made it clear that the agreement would remain in force
until terminated by any of the parties.58
To further strengthen their defense and security
relationship,59 the Philippines and the U.S. next entered into
the MDT in 1951. Concurred in by both the Philippine60 and the
U.S.61 Senates, the treaty has two main features: first, it
allowed for mutual assistance in maintaining and developing
their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense
in the event of an armed attack against the territory of either
party.63 The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to the
security of the other.64
C. Current legal regime on the presence of U.S. armed
forces in the country
FINALS CONSTITUTION I ACJUCO 269
In view of the impending expiration of the 1947 MBA in 1991,
the Philippines and the U.S. negotiated for a possible renewal
of their defense and security relationship. 65 Termed as the
Treaty of Friendship, Cooperation and Security, the countries
sought to recast their military ties by providing a new
framework for their defense cooperation and the use of
Philippine installations.66 One of the proposed provisions
included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine
naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting
paucity of any formal agreement dealing with the treatment of
U.S. personnel in the Philippines led to the suspension in 1995
of large-scale joint military exercises.69In the meantime, the
respective governments of the two countries agreed 70 to hold
joint exercises at a substantially reduced level. 71 The military
arrangements between them were revived in 1999 when they
concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the
VFA has laid down the regulatory mechanism for the treatment
of U.S. military and civilian personnel visiting the country. 74 It
contains provisions on the entry and departure of U.S.
personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of
certain claims; the importation and exportation of equipment,
materials, supplies, and other pieces of property owned by the
U.S. government; and the movement of U.S. military vehicles,
vessels, and aircraft into and within the country. 75 The
Philippines and the U.S. also entered into a second counterpart
agreement (VFA II), which in turn regulated the treatment of
Philippine military and civilian personnel visiting the U.S. 76 The
Philippine Senate concurred in the first VFA on 27 May 1999. 77
Beginning in January 2002, U.S. military and civilian personnel
started arriving in Mindanao to take part in joint military
exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant
to the MDT.79
In the same year, the Philippines and the U.S. entered into the
Mutual Logistics Support Agreement to "further the
interoperability, readiness, and effectiveness of their
respective military forces"80 in accordance with the MDT, the
Military Assistance Agreement of 1953, and the VFA.81 The
new agreement outlined the basic terms, conditions, and
procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces of
the two countries.82 The phrase "logistics support and
services" includes billeting, operations support, construction
and use of temporary structures, and storage services during
an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will
last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and
conduct activities within certain "Agreed Locations" in the
country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer
necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary
internal requirements for the agreement to enter into force in
the two countries.86
According to the Philippine government, the conclusion of
EDCA was the result of intensive and comprehensive
negotiations in the course of almost two years.87 After eight
rounds of negotiations, the Secretary of National Defense and
the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified
EDCA on 6 June 2014.89 The OSG clarified during the oral
arguments90 that the Philippine and the U.S. governments had
yet to agree formally on the specific sites of the Agreed
Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us
assailing the constitutionality of EDCA. They primarily argue
that it should have been in the form of a treaty concurred in by
the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were
concluded and the parties ordered to file their respective
memoranda, the Senators adopted Senate Resolution No.
(SR) 105.91 The resolution expresses the "strong sense"92 of
the Senators that for EDCA to become valid and effective, it
must first be transmitted to the Senate for deliberation and
concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive
Department committed grave abuse of discretion in entering
into EDCA in the form of an executive agreement. For this
reason, we cull the issues before us:
A. Whether the essential requisites for judicial
review are present
B. Whether the President may enter into an
executive agreement on foreign military bases,
troops, or facilities
C. Whether the provisions under EDCA are
consistent with the Constitution, as well as with
existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have
been satisfied
Petitioners are hailing this Court's power of judicial review in
order to strike down EDCA for violating the Constitution. They
stress that our fundamental law is explicit in prohibiting the
presence of foreign military forces in the country, except under
a treaty concurred in by the Senate. Before this Court may
begin to analyze the constitutionality or validity of an official act
of a coequal branch of government, however, petitioners must
show that they have satisfied all the essential requisites for
judicial review.93
Distinguished from the general notion of judicial power, the
power of judicial review specially refers to both the authority
and the duty of this Court to determine whether a branch or an
instrumentality of government has acted beyond the scope of
the latter's constitutional powers.94 As articulated in Section 1,
Article VIII of the Constitution, the power of judicial review
involves the power to resolve cases in which the questions
concern the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court
exhaustively discussed this "moderating power" as part of the
FINALS CONSTITUTION I ACJUCO 270
system of checks and balances under the Constitution. In our
fundamental law, the role of the Court is to determine whether
a branch of government has adhered to the specific restrictions
and limitations of the latter's power:96
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision
but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the
government. x x x. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to
determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.
xxxx
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their delegates
to so provide, that instrument which is the expression of
their sovereignty however limited, has established a
republican government intended to operate and function
as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and
restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the
course of government along constitutional channels, for
then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our
Constitution are real as they should be in any living
constitution. x x x. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of
article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the
Constitution. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in
the 1987 Constitution. The scope of that power has been
extended to the determination of whether in matters
traditionally considered to be within the sphere of appreciation
of another branch of government, an exercise of discretion has
been attended with grave abuse.97 The expansion of this
power has made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative
actions from judicial inquiry or review."98
This moderating power, however, must be exercised carefully
and only if it cannot be completely avoided. We stress that our
Constitution is so incisively designed that it identifies the
spheres of expertise within which the different branches of
government shall function and the questions of policy that they
shall resolve.99 Since the power of judicial review involves the
delicate exercise of examining the validity or constitutionality of
an act of a coequal branch of government, this Court must
continually exercise restraint to avoid the risk of supplanting
the wisdom of the constitutionally appointed actor with that of
its own.100
Even as we are left with no recourse but to bare our power to
check an act of a coequal branch of government - in this case
the executive - we must abide by the stringent requirements for
the exercise of that power under the Constitution. Demetria v.
Alba101 and Francisco v. House of Representatives 102 cite the
"pillars" of the limitations on the power of judicial review as
enunciated in the concurring opinion of U.S. Supreme Court
Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the
following categories:
1. That there be absolute necessity of deciding a
case
2. That rules of constitutional law shall
be formulated only as required by the facts of the
case
3. That judgment may not be sustained on some
other ground
4. That there be actual injury sustained by the
party by reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when
it exercises its power of judicial review. 105 Guided by these
pillars, it may invoke the power only when the following four
stringent requirements are satisfied: (a) there is an actual case
or controversy; (b) petitioners possess locus standi; (c) the
question of constitutionality is raised at the earliest opportunity;
and (d) the issue of constitutionality is the lis mota of the
case.106 Of these four, the first two conditions will be the focus
of our discussion.
1. Petitioners have shown the presence of an actual case
or controversy.
The OSG maintains107 that there is no actual case or
controversy that exists, since the Senators have not been
deprived of the opportunity to invoke the privileges of the
institution they are representing. It contends that the
nonparticipation of the Senators in the present petitions only
confirms that even they believe that EDCA is a binding
executive agreement that does not require their concurrence.
FINALS CONSTITUTION I ACJUCO 271
It must be emphasized that the Senate has already expressed
its position through SR 105.108 Through the Resolution, the
Senate has taken a position contrary to that of the OSG. As the
body tasked to participate in foreign affairs by ratifying treaties,
its belief that EDCA infringes upon its constitutional role
indicates that an actual controversy - albeit brought to the
Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the
Senators from the present proceedings as basis for finding that
there is no actual case or controversy before us. We point out
that the focus of this requirement is the ripeness for
adjudication of the matter at hand, as opposed to its being
merely conjectural or anticipatory.109 The case must involve a
definite and concrete issue involving real parties with
conflicting legal rights and legal claims admitting of specific
relief through a decree conclusive in nature. 110 It should not
equate with a mere request for an opinion or advice on what
the law would be upon an abstract, hypothetical, or contingent
state of facts.111 As explained in Angara v. Electoral
Commission:112
[The] power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of
argument by the parties, and limited further to the
constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in
the executive and legislative departments of the
government. (Emphases supplied)
We find that the matter before us involves an actual case or
controversy that is already ripe for adjudication. The Executive
Department has already sent an official confirmation to the
U.S. Embassy that "all internal requirements of the Philippines
x x x have already been complied with."113 By this exchange of
diplomatic notes, the Executive Department effectively
performed the last act required under Article XII(l) of EDCA
before the agreement entered into force. Section 25, Article
XVIII of the Constitution, is clear that the presence of foreign
military forces in the country shall only be allowed by virtue of
a treaty concurred in by the Senate. Hence, the performance
of an official act by the Executive Department that led to the
entry into force of an executive agreement was sufficient to
satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et. al., do not have legal
standing, they nonetheless raise issues involving matters
of transcendental importance.
The question of locus standi or legal standing focuses on the
determination of whether those assailing the governmental act
have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and
substantial interest in the case, such that they have sustained
or are in immediate danger of sustaining, some direct injury as
a consequence of the enforcement of the challenged
governmental act.115 Here, "interest" in the question involved
must be material - an interest that is in issue and will be
affected by the official act - as distinguished from being merely
incidental or general.116 Clearly, it would be insufficient to show
that the law or any governmental act is invalid, and that
petitioners stand to suffer in some indefinite way. 117 They must
show that they have a particular interest in bringing the suit,
and that they have been or are about to be denied some right
or privilege to which they are lawfully entitled, or that they are
about to be subjected to some burden or penalty by reason of
the act complained of.118 The reason why those who challenge
the validity of a law or an international agreement are required
to allege the existence of a personal stake in the outcome of
the controversy is "to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions."119
The present petitions cannot qualify as citizens', taxpayers', or
legislators' suits; the Senate as a body has the requisite
standing, but considering that it has not formally filed a
pleading to join the suit, as it merely conveyed to the Supreme
Court its sense that EDCA needs the Senate's concurrence to
be valid, petitioners continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act,
petitioners suing as citizens may dodge the requirement of
having to establish a direct and personal interest if they show
that the act affects a public right. 120 In arguing that they have
legal standing, they claim121 that the case they have filed is a
concerned citizen's suit. But aside from general statements
that the petitions involve the protection of a public right, and
that their constitutional rights as citizens would be violated,
they fail to make any specific assertion of a particular public
right that would be violated by the enforcement of EDCA. For
their failure to do so, the present petitions cannot be
considered by the Court as citizens' suits that would
justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers,
petitioners122 aver that the implementation of EDCA would
result in the unlawful use of public funds. They emphasize that
Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted
that the government had not yet appropriated or actually
disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that
petitioners cannot sue as taxpayers. 124Respondent explains
that EDCA is neither meant to be a tax measure, nor is it
directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act
complained of directly involves the illegal disbursement of
public funds derived from taxation.125 Here, those challenging
the act must specifically show that they have sufficient interest
in preventing the illegal expenditure of public money, and that
they will sustain a direct injury as a result of the enforcement
of the assailed act.126 Applying that principle to this case, they
must establish that EDCA involves the exercise by
Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as
taxpayers' suits. We emphasize that a taxpayers' suit
contemplates a situation in which there is already an
appropriation or a disbursement of public funds. 128 A reading
of Article X(l) of EDCA would show that there has been neither
an appropriation nor an authorization of disbursement of funds.
The cited provision reads:
All obligations under this Agreement are subject to the
availability of appropriated funds authorized for these
purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would
require the disbursement of public funds, the money must
come from appropriated funds that are
specifically authorized for this purpose. Under the agreement,
before there can even be a disbursement of public funds, there
FINALS CONSTITUTION I ACJUCO 272
must first be a legislative action. Until and unless the
Legislature appropriates funds for EDCA, or unless
petitioners can pinpoint a specific item in the current
budget that allows expenditure under the agreement, we
cannot at this time rule that there is in fact an
appropriation or a disbursement of funds that would
justify the filing of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners
who are party-list representatives have the standing to
challenge the act of the Executive Department, especially if it
impairs the constitutional prerogatives, powers, and privileges
of their office. While they admit that there is no incumbent
Senator who has taken part in the present petition, they
nonetheless assert that they also stand to sustain a derivative
but substantial injury as legislators. They argue that under the
Constitution, legislative power is vested in both the Senate and
the House of Representatives; consequently, it is the entire
Legislative Department that has a voice in determining whether
or not the presence of foreign military should be allowed. They
maintain that as members of the Legislature, they have the
requisite personality to bring a suit, especially when a
constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal
standing to file the suits concerning the lack of Senate
concurrence in EDCA. Respondent emphasizes that the power
to concur in treaties and international agreements is an
"institutional prerogative" granted by the Constitution to the
Senate. Accordingly, the OSG argues that in case of an
allegation of impairment of that power, the injured party would
be the Senate as an institution or any of its incumbent
members, as it is the Senate's constitutional function that is
allegedly being violated.
The legal standing of an institution of the Legislature or of any
of its Members has already been recognized by this Court in a
number of cases.131 What is in question here is the alleged
impairment of the constitutional duties and powers granted to,
or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof. 132 In the case of suits
initiated by the legislators themselves, this Court has
recognized their standing to question the validity of any official
action that they claim infringes the prerogatives, powers, and
privileges vested by the Constitution in their office. 133 As aptly
explained by Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to
see that the latter act within the bounds of the
Constitution which, as representatives of the people, they
should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people
and it is their sacred duty to see to it that the fundamental
law embodying the will of the sovereign people is not
trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of
Congress who are challenging the official act have standing
only to the extent that the alleged violation impinges on their
right to participate in the exercise of the powers of the
institution of which they are members.135 Legislators have the
standing "to maintain inviolate the prerogatives, powers, and
privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action,
which they claim infringes their prerogatives as
legislators."136 As legislators, they must clearly show that there
was a direct injury to their persons or the institution to which
they belong.137
As correctly argued by respondent, the power to concur in a
treaty or an international agreement is an institutional
prerogative granted by the Constitution to the Senate, not to
the entire Legislature. In Pimentel v. Office of the Executive
Secretary, this Court did not recognize the standing of one of
the petitioners therein who was a member of the House of
Representatives. The petition in that case sought to compel the
transmission to the Senate for concurrence of the signed text
of the Statute of the International Criminal Court. Since that
petition invoked the power of the Senate to grant or withhold
its concurrence in a treaty entered into by the Executive
Department, only then incumbent Senator Pimentel was
allowed to assert that authority of the Senate of which he was
a member.
Therefore, none of the initial petitioners in the present
controversy has the standing to maintain the suits as
legislators.
Nevertheless, this Court finds that there is basis for it to review
the act of the Executive for the following reasons.
In any case, petitioners raise issues involving matters of
transcendental importance.
Petitioners138 argue that the Court may set aside procedural
technicalities, as the present petition tackles issues that are of
transcendental importance. They point out that the matter
before us is about the proper exercise of the Executive
Department's power to enter into international agreements in
relation to that of the Senate to concur in those agreements.
They also assert that EDCA would cause grave injustice, as
well as irreparable violation of the Constitution and of the
Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot
raise the mere fact that the present petitions involve matters of
transcendental importance in order to cure their inability to
comply with the constitutional requirement of standing.
Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of
constitutional litigation. It stresses that one of the purposes of
these requirements is to protect the Supreme Court from
unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal
stance towards the requirement of legal standing, especially
when paramount interest is involved. Indeed, when those who
challenge the official act are able to craft an issue of
transcendental significance to the people, the Court may
exercise its sound discretion and take cognizance of the suit.
It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a
law or any other government act.
While this Court has yet to thoroughly delineate the outer limits
of this doctrine, we emphasize that not every other case,
however strong public interest may be, can qualify as an issue
of transcendental importance. Before it can be impelled to
brush aside the essential requisites for exercising its power of
judicial review, it must at the very least consider a number of
factors: (1) the character of the funds or other assets involved
in the case; (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack
of any other party that has a more direct and specific interest
in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties,
together with the oral arguments, shows that petitioners have
presented serious constitutional issues that provide ample
justification for the Court to set aside the rule on standing. The
FINALS CONSTITUTION I ACJUCO 273
transcendental importance of the issues presented here is
rooted in the Constitution itself. Section 25, Article XVIII
thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or
bases may be allowed in the country. The DFA has already
confirmed to the U.S. Embassy that "all internal requirements
of the Philippines x x x have already been complied with." 142 It
behooves the Court in this instance to take a liberal stance
towards the rule on standing and to determine forthwith
whether there was grave abuse of discretion on the part of the
Executive Department.
We therefore rule that this case is a proper
subject for judicial review.
B. Whether the President may enter into an
executive agreement on foreign military bases,
troops, or facilities
C. Whether the provisions under EDCA are
consistent with the Constitution, as well as with
existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law
includes the duty to defend the State, for which purpose
he may use that power in the conduct of foreign relations
Historically, the Philippines has mirrored the division of powers
in the U.S. government. When the Philippine government was
still an agency of the Congress of the U.S., it was as an agent
entrusted with powers categorized as executive, legislative,
and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided
powers cannot be exercised except by the department given
the power.144
This divide continued throughout the different versions of the
Philippine Constitution and specifically vested the supreme
executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the
Philippines when the country attained independence. One of
the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied
by the oath of office.146 The oath of the President prescribed
by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-
President or Acting President) of the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every
man, and consecrate myself to the service of the Nation. So
help me God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an
obligation imposed on the President, and not a separate grant
of power.148 Section 1 7, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the
provision regarding the President's power of control over the
executive department, viz:
The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
The equivalent provisions in the next preceding Constitution
did not explicitly require this oath from the President. In the
1973 Constitution, for instance, the provision simply gives the
President control over the ministries.149 A similar language, not
in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive
functions.150 By 1987, executive power was codified not only in
the Constitution, but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have
control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is
inherent in executive power and is intimately related to the
other executive functions. These functions include the faithful
execution of the law in autonomous regions;152 the right to
prosecute crimes;153 the implementation of transportation
projects;154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority to
deport undesirable aliens;156 the conferment of national
awards under the President's jurisdiction;157 and the overall
administration and control of the executive department. 158
These obligations are as broad as they sound, for a President
cannot function with crippled hands, but must be capable of
securing the rule of law within all territories of the Philippine
Islands and be empowered to do so within constitutional limits.
Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations
for a law it has enacted.159
More important, this mandate is self-executory by virtue of its
being inherently executive in nature. 160 As Justice Antonio T.
Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or
execution of self-executory constitutional powers vested in the
President, the rule-making power of the President is not a
delegated legislative power. The most important self-executory
constitutional power of the President is the President's
constitutional duty and mandate to "ensure that the laws be
faithfully executed." The rule is that the President can execute
the law without any delegation of power from the legislature.
The import of this characteristic is that the manner of the
President's execution of the law, even if not expressly
granted by the law, is justified by necessity and limited
only by law, since the President must "take necessary and
proper steps to carry into execution the law." 162 Justice
George Malcolm states this principle in a grand manner:163
The executive should be clothed with sufficient power to
administer efficiently the affairs of state. He should have
complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton,
that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad
execution; and a government ill executed, whatever it may be
in theory, must be in practice a bad government." The mistakes
of State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain -
The Congress of the United States clearly intended that the
Governor-General's power should be commensurate with his
responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but
shorn of the power to do so. The interests of the Philippines
FINALS CONSTITUTION I ACJUCO 274
will be best served by strict adherence to the basic principles
of constitutional government.
In light of this constitutional duty, it is the President's
prerogative to do whatever is legal and necessary for
Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause was
followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary
events of lawless violence, invasion, or rebellion. And this duty
of defending the country is unceasing, even in times when
there is no state of lawlesss violence, invasion, or rebellion. At
such times, the President has full powers to ensure the faithful
execution of the laws.
It would therefore be remiss for the President and repugnant
to the faithful-execution clause of the Constitution to do nothing
when the call of the moment requires increasing the military's
defensive capabilities, which could include forging alliances
with states that hold a common interest with the Philippines or
bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by
Justice Arturo D. Brion's Dissenting Opinion as the beginning
of a "patent misconception."165 His dissent argues that this
approach taken in analyzing the President's role as executor
of the laws is preceded by the duty to preserve and defend the
Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly
failed to appreciate the nuances of the analysis, if read
holistically and in context. The concept that the President
cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in treaties 167 was
never expressed or implied. Rather, the appropriate reading of
the preceding analysis shows that the point being elucidated is
the reality that the President's duty to execute the laws and
protect the Philippines is inextricably interwoven with his
foreign affairs powers, such that he must resolve issues
imbued with both concerns to the full extent of his powers,
subject only to the limits supplied by law. In other words, apart
from an expressly mandated limit, or an implied limit by virtue
of incompatibility, the manner of execution by the President
must be given utmost deference. This approach is not different
from that taken by the Court in situations with fairly similar
contexts.
Thus, the analysis portrayed by the dissent does not give the
President authority to bypass constitutional safeguards and
limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and
what can be done within the sphere of constitutional duties and
limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis
proffered when it claims that the foreign relations power of the
President should not be interpreted in isolation. 168 The analysis
itself demonstrates how the foreign affairs function, while
mostly the President's, is shared in several instances, namely
in Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international
agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into
prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the
relationship between the two major presidential functions and
the role of the Senate in it.
This approach of giving utmost deference to presidential
initiatives in respect of foreign affairs is not novel to the Court.
The President's act of treating EDCA as an executive
agreement is not the principal power being analyzed as the
Dissenting Opinion seems to suggest. Rather, the preliminary
analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the
Courts must not unduly restrict. As we stated recently in Vinuya
v. Romulo:
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority
to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government
should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which
is demonstrably committed by our Constitution not to the courts
but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest
of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the
US Supreme Court held that "[t]he President is the sole organ
of the nation in its external relations, and its sole representative
with foreign relations."
It is quite apparent that if, in the
maintenance of our international relations,
embarrassment - perhaps serious
embarrassment - is to be avoided and
success for our aims achieved,
congressional legislation which is to be
made effective through negotiation and
inquiry within the international field must
often accord to the President a degree
of discretion and freedom from
statutory restriction which would not be
admissible where domestic affairs alone
involved. Moreover, he, not Congress, has
the better opportunity of knowing the
conditions which prevail in foreign
countries, and especially is this true in time
of war. He has his confidential sources of
information. He has his agents in the form
of diplomatic, consular and other officials
....
This ruling has been incorporated in our jurisprudence
through Bavan v. Executive Secretary and Pimentel v.
Executive Secretary; its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full
of complexities and consequences,
sometimes with life and death significance
to the nation especially in times of war. It
can only be entrusted to that department of
government which can act on the basis of
the best available information and can
decide with decisiveness .... It is also the
President who possesses the most
comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials regularly
brief him on meaningful events all over the
world. He has also unlimited access to
ultra-sensitive military intelligence data. In
FINALS CONSTITUTION I ACJUCO 275
fine, the presidential role in foreign
affairs is dominant and the President is
traditionally accorded a wider degree of
discretion in the conduct of foreign
affairs. The regularity, nay, validity of
his actions are adjudged under less
stringent standards, lest their judicial
repudiation lead to breach of an
international obligation, rupture of state
relations, forfeiture of confidence,
national embarrassment and a plethora
of other problems with equally
undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the
same perspective and understanding, knowing full well the
constitutional and legal repercussions of any judicial
overreach.
2. The plain meaning of the Constitution prohibits the
entry of foreign military bases, troops or facilities, except
by way of a treaty concurred in by the Senate - a clear
limitation on the President's dual role as defender of the
State and as sole authority in foreign relations.
Despite the President's roles as defender of the State and sole
authority in foreign relations, the 1987 Constitution expressly
limits his ability in instances when it involves the entry of
foreign military bases, troops or facilities. The initial limitation
is found in Section 21 of the provisions on the Executive
Department: "No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of
all the Members of the Senate." The specific limitation is given
by Section 25 of the Transitory Provisions, the full text of which
reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting
State.
It is quite plain that the Transitory Provisions of the 1987
Constitution intended to add to the basic requirements of a
treaty under Section 21 of Article VII. This means that both
provisions must be read as additional limitations to the
President's overarching executive function in matters of
defense and foreign relations.
3. The President, however, may enter into an executive
agreement on foreign military bases, troops, or facilities,
if (a) it is not the instrument that allows the presence of
foreign military bases, troops, or facilities; or (b) it merely
aims to implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty
by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must
be in the form of a "treaty" duly concurred in by the Senate.
They stress that the Constitution is unambigous in mandating
the transmission to the Senate of all international agreements
concluded after the expiration of the MBA in 1991 - agreements
that concern the presence of foreign military bases, troops, or
facilities in the country. Accordingly, petitioners maintain that
the Executive Department is not given the choice to conclude
agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority
vote of 15 of its members - with 1 against and 2 abstaining -
says in SR 105171 that EDCA must be submitted to the Senate
in the form of a treaty for concurrence by at least two-thirds of
all its members.
The Senate cites two constitutional provisions (Article VI,
Section 21 and Article XVIII, Section 25) to support its position.
Compared with the lone constitutional provision that the Office
of the Solicitor General (OSG) cites, which is Article XVIII,
Section 4(2), which includes the constitutionality of "executive
agreement(s)" among the cases subject to the Supreme
Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two specific
provisions versus one general provision means that the
specific provisions prevail. The term "executive agreement" is
"a term wandering alone in the Constitution, bereft of
provenance and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago,
upon interpellation even added that the MDT, which the
Executive claims to be partly implemented through EDCA, is
already obsolete.
There are two insurmountable obstacles to this Court's
agreement with SR 105, as well as with the comment on
interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-
entrenched in this Court's pronouncements on the powers of
the President. When the Court validated the concept of
"executive agreement," it did so with full knowledge of the
Senate's role in concurring in treaties. It was aware of the
problematique of distinguishing when an international
agreement needed Senate concurrence for validity, and when
it did not; and the Court continued to validate the existence of
"executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions
upholding the power of the President to enter into an executive
agreement.173
Second, the MDT has not been rendered obsolescent,
considering that as late as 2009,174 this Court continued to
recognize its validity.
Third, to this Court, a plain textual reading of Article XIII,
Section 25, inevitably leads to the conclusion that it applies
only to a proposed agreement between our government and a
foreign government, whereby military bases, troops, or
facilities of such foreign government would be "allowed" or
would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative
injunction. This wording signifies that the President is not
authorized by law to allow foreign military bases, troops, or
facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally
FINALS CONSTITUTION I ACJUCO 276
restricted authority pertains to the entry of the bases, troops,
or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of
paramount consideration is the plain meaning of the language
expressed in the Constitution, or the verba legis rule.175 It is
presumed that the provisions have been carefully crafted in
order to express the objective it seeks to attain. 176 It is
incumbent upon the Court to refrain from going beyond the
plain meaning of the words used in the Constitution. It is
presumed that the framers and the people meant what they
said when they said it, and that this understanding was
reflected in the Constitution and understood by the people in
the way it was meant to be understood when the fundamental
law was ordained and promulgated.177 As this Court has often
said:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document,
it being essential for the rule of law to obtain that it should ever
be present in the people's consciousness, its language as
much as possible should be understood in the sense they
have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus,
these are the cases where the need for construction is
reduced to a minimum.178(Emphases supplied)
It is only in those instances in which the constitutional provision
is unclear, ambiguous, or silent that further construction must
be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v.
Commission on Elections,180 we reiterated this guiding
principle:
it [is] safer to construe the Constitution from what appears
upon its face. The proper interpretation therefore depends
more on how it was understood by the people adopting it
than in the framers' understanding thereof. (Emphases
supplied)
The effect of this statement is surprisingly profound, for, if
taken literally, the phrase "shall not be allowed in the
Philippines" plainly refers to the entry of bases, troops, or
facilities in the country. The Oxford English Dictionary defines
the word "allow" as a transitive verb that means "to permit,
enable"; "to give consent to the occurrence of or relax restraint
on (an action, event, or activity)"; "to consent to the presence
or attendance of (a person)"; and, when with an adverbial of
place, "to permit (a person or animal) to go, come, or be in, out,
near, etc."181 Black's Law Dictionary defines the term as one
that means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a
preposition used to indicate "place or position in space or
anything having material extension: Within the limits or bounds
of, within (any place or thing)."183 That something is the
Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the
initial entry of the foreign military bases, troops, or facilities.
Once entry is authorized, the subsequent acts are thereafter
subject only to the limitations provided by the rest of the
Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the
Philippines. This Court stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the
ambiguity surrounding the meaning of the word "activities"
arose from accident. In our view, it was deliberately made that
way to give both parties a certain leeway in negotiation. In this
manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the
joint exercises may include training on new techniques of patrol
and surveillance to protect the nation's marine resources, sea
search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions,
and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that "Balikatan
02-1," a "mutual anti- terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and
intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to
combat itself-such as the one subject of the instant petition, are
indeed authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues
to govern the conduct of foreign military troops in the
Philippines,185 readily implying the legality of their initial entry
into the country.
The OSG emphasizes that EDCA can be in the form of an
executive agreement, since it merely involves "adjustments in
detail" in the implementation of the MDT and the VFA. 186 It
points out that there are existing treaties between the
Philippines and the U.S. that have already been concurred in
by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of
the status of these prior agreements, respondent emphasizes
that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees
with the ponencia's application of verba legis construction to
the words of Article XVIII, Section 25. 187 It claims that the
provision is "neither plain, nor that simple." 188 To buttress its
disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the
circumstances that led to the historical event, and the meaning
of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique
of verba legis is not inapplicable just because a provision has
a specific historical context. In fact, every provision of the
Constitution has a specific historical context. The purpose of
constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular
provision functions. Verba legis is of paramount consideration,
but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search
for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails. As
the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much
as possible should be understood in the sense they have
FINALS CONSTITUTION I ACJUCO 277
in common use. What it says according to the text of the
provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus,
these are the cases where the need for construction is
reduced to a minimum.190(Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning
of terms. In this case, the phrase being construed is "shall not
be allowed in the Philippines" and not the preceding one
referring to "the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases,
troops, or facilities." It is explicit in the wording of the provision
itself that any interpretation goes beyond the text itself and into
the discussion of the framers, the context of the Constitutional
Commission's time of drafting, and the history of the 1947
MBA. Without reference to these factors, a reader would not
understand those terms. However, for the phrase "shall not be
allowed in the Philippines," there is no need for such reference.
The law is clear. No less than the Senate understood this when
it ratified the VFA.
4. The President may generally enter into executive
agreements subject to limitations defined by the
Constitution and may be in furtherance of a treaty already
concurred in by the Senate.
We discuss in this section why the President can enter into
executive agreements.
It would be helpful to put into context the contested language
found in Article XVIII, Section 25. Its more exacting
requirement was introduced because of the previous
experience of the country when its representatives felt
compelled to consent to the old MBA.191 They felt constrained
to agree to the MBA in fulfilment of one of the major conditions
for the country to gain independence from the U.S. 192 As a
result of that experience, a second layer of consent for
agreements that allow military bases, troops and facilities in
the country is now articulated in Article XVIII of our present
Constitution.
This second layer of consent, however, cannot be interpreted
in such a way that we completely ignore the intent of our
constitutional framers when they provided for that additional
layer, nor the vigorous statements of this Court that affirm the
continued existence of that class of international agreements
called "executive agreements."
The power of the President to enter into binding executive
agreements without Senate concurrence is already well-
established in this jurisdiction.193 That power has been alluded
to in our present and past Constitutions, 194 in various
statutes,195 in Supreme Court decisions,196 and during the
deliberations of the Constitutional Commission.197 They cover
a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of
foreign military forces in the country.199
As the sole organ of our foreign relations200 and the
constitutionally assigned chief architect of our foreign
policy,201the President is vested with the exclusive power to
conduct and manage the country's interface with other states
and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into
international agreements; promotes trade, investments,
tourism and other economic relations; and settles international
disputes with other states.202
As previously discussed, this constitutional mandate emanates
from the inherent power of the President to enter into
agreements with other states, including the prerogative to
conclude binding executive agreements that do not require
further Senate concurrence. The existence of this presidential
power203 is so well-entrenched that Section 5(2)(a), Article VIII
of the Constitution, even provides for a check on its exercise.
As expressed below, executive agreements are among those
official governmental acts that can be the subject of this Court's
power of judicial review:
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower
courts in:
(a) All cases in which
the constitutionality or
validity of any treaty, international or ex
ecutive agreement, law, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(Emphases supplied)
In Commissioner of Customs v. Eastern Sea
Trading, executive agreements are defined as "international
agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving
arrangements of a more or less temporary nature."204 In Bayan
Muna v. Romulo, this Court further clarified that executive
agreements can cover a wide array of subjects that have
various scopes and purposes.205 They are no longer limited to
the traditional subjects that are usually covered by executive
agreements as identified in Eastern Sea Trading. The Court
thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered
by international agreementsmentioned in Eastern Sea
Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed
since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law
wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the
executive agreements executed by its President from 1980 to
2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear
safety, among others. Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement
format would be convenient to serve its best interest. As
Francis Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the
large variety of executive agreements as such concluded
from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have
been negotiated with foreign governments. . . . They cover
such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally,
international claims, postal matters, the registration of
trademarks and copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is
that their validity and effectivity are not affected by a lack of
Senate concurrence.206 This distinctive feature was
recognized as early as in Eastern Sea Trading (1961), viz:
FINALS CONSTITUTION I ACJUCO 278
Treaties are formal documents which require ratification
with the approval of two-thirds of the Senate. Executive
agreements become binding through executive action
without the need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered
into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of
claims. The validity of these has never been seriously
questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In
fact, the framers specifically deliberated on whether the
general term "international agreement" included executive
agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements
from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling
in Eastern Sea Trading, the Constitutional Commission
members ultimately decided that the term "international
agreements" as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no
longer needed. Their discussion is reproduced below: 207
MS. AQUINO: Madam President, first I would like a clarification
from the Committee. We have retained the words "international
agreement" which I think is the correct judgment on the matter
because an international agreement is different from a treaty.
A treaty is a contract between parties which is in the nature of
international agreement and also a municipal law in the sense
that the people are bound. So there is a conceptual difference.
However, I would like to be clarified if the international
agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All
parties to these international negotiations stipulate the
conditions which are necessary for the agreement or whatever
it may be to become valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that
depend on the nature of the executive agreement? According
to common usage, there are two types of executive
agreement: one is purely proceeding from an executive
act which affects external relations independent of the
legislative and the other is an executive act in pursuance
of legislative authorization. The first kind might take the
form of just conventions or exchanges of notes or
protocol while the other, which would be pursuant to the
legislative authorization, may be in the nature of
commercial agreements.
MR. CONCEPCION: Executive agreements are generally
made to implement a treaty already enforced or to
determine the details for the implementation of the treaty.
We are speaking of executive agreements, not international
agreements.
MS. AQUINO: I am in full agreement with that, except that it
does not cover the first kind of executive agreement which is
just protocol or an exchange of notes and this would be in the
nature of reinforcement of claims of a citizen against a country,
for example.
MR. CONCEPCION: The Commissioner is free to require
ratification for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we
should provide, unless the Committee explains to us
otherwise, an explicit proviso which would except executive
agreements from the requirement of concurrence of two-
thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the
sentence should read. "No treaty or international agreement
EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."
FR. BERNAS: I wonder if a quotation from the Supreme
Court decision [in Eastern Sea Trading] might help clarify
this:
The right of the executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have entered
into executive agreements covering such subjects as
commercial and consular relations, most favored nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The
validity of this has never been seriously questioned by our
Courts.
Agreements with respect to the registration of trademarks have
been concluded by the executive of various countries under
the Act of Congress of March 3, 1881 (21 Stat. 502) . .
. International agreements involving political issues or
changes of national policy and those involving international
agreements of a permanent character usually take the form
of treaties. But international agreements
embodying adjustments of detail, carrying out well
established national policies and traditions and those
involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the
executive agreements?
FR. BERNAS: What we are referring to, therefore, when we
say international agreements which need concurrence by
at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements
which are executive agreements essentially but which are
proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress,
then it does not need subsequent concurrence by
Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among
us on the definition of "executive agreements" and that
would make unnecessary any explicit proviso on the
matter.
xxx
FINALS CONSTITUTION I ACJUCO 279
MR. GUINGONA: I am not clear as to the meaning of
"executive agreements" because I heard that these executive
agreements must rely on treaties. In other words, there must
first be treaties.
MR. CONCEPCION: No, I was speaking about the common
use, as executive agreements being the implementation of
treaties, details of which do not affect the sovereignty of the
State.
MR. GUINGONA: But what about the matter of permanence,
Madam President? Would 99 years be considered permanent?
What would be the measure of permanency? I do not conceive
of a treaty that is going to be forever, so there must be some
kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question
is whether this type of agreement should be included in a
provision of the Constitution requiring the concurrence of
Congress.
MR. GUINGONA: It depends on the concept of the executive
agreement of which I am not clear. If the executive
agreement partakes of the nature of a treaty, then it should
also be included.
MR. CONCEPCION: Whether it partakes or not of the nature
of a treaty, it is within the power of the Constitutional
Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify
whether the words "international agreements" would
include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one
question. Do we take it, therefore, that as far as the
Committee is concerned, the term "international
agreements" does not include the term "executive
agreements" as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the
requirements under Section 21 was again recognized in Bayan
v. Zamora and in Bayan Muna v. Romulo. These cases, both
decided under the aegis of the present Constitution,
quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the
concurrence of the Senate.
Executive agreements may dispense with the requirement of
Senate concurrence because of the legal mandate with which
they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past Supreme
Court Decisions, and works of noted scholars, 208 executive
agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty; 209 (2)
pursuant to or upon confirmation by an act of the
Legislature;210 or (3) in the exercise of the President's
independent powers under the Constitution. 211 The raison
d'etre of executive agreements hinges on prior constitutional
or legislative authorizations.
The special nature of an executive agreement is not just a
domestic variation in international agreements. International
practice has accepted the use of various forms and
designations of international agreements, ranging from the
traditional notion of a treaty - which connotes a formal, solemn
instrument - to engagements concluded in modem, simplified
forms that no longer necessitate ratification. 212 An international
agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention,
covenant, declaration, exchange of notes, statute, pact,
charter, agreed minute, memorandum of agreement, modus
vivendi, or some other form.213 Consequently, under
international law, the distinction between a treaty and an
international agreement or even an executive agreement is
irrelevant for purposes of determining international rights and
obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international
agreements, and executive agreements is relegated to a mere
variation in form, or that the constitutional requirement of
Senate concurrence is demoted to an optional constitutional
directive. There remain two very important features that
distinguish treaties from executive agreements and translate
them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an
express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts the
validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to
defeat or interfere in the performance of these rules.214 In turn,
executive agreements cannot create new international
obligations that are not expressly allowed or reasonably
implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior
to executive agreements. Treaties are products of the acts of
the Executive and the Senate215 unlike executive agreements,
which are solely executive actions. 216Because of legislative
participation through the Senate, a treaty is regarded as being
on the same level as a statute.217 If there is an irreconcilable
conflict, a later law or treaty takes precedence over one that is
prior.218 An executive agreement is treated differently.
Executive agreements that are inconsistent with either a law or
a treaty are considered ineffective.219 Both types of
international agreement are nevertheless subject to the
supremacy of the Constitution.220
This rule does not imply, though, that the President is
given carte blanche to exercise this discretion. Although the
Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the
context and the parameters set by the Constitution, as well as
by existing domestic and international laws. There are
constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as
those that involve the following:
a. The policy of freedom from nuclear weapons within
Philippine territory221
b. The fixing of tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts, which must be pursuant to the authority
granted by Congress222
c. The grant of any tax exemption, which must be
pursuant to a law concurred in by a majority of all the
Members of Congress223
FINALS CONSTITUTION I ACJUCO 280
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously
concurred in by the Monetary Board224
e. The authorization of the presence of foreign
military bases, troops, or facilities in the country must
be in the form of a treaty duly concurred in by the
Senate.225
f. For agreements that do not fall under paragraph 5,
the concurrence of the Senate is required, should the
form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way
of an executive agreement or a treaty.
No court can tell the President to desist from choosing an
executive agreement over a treaty to embody an international
agreement, unless the case falls squarely within Article VIII,
Section 25.
As can be gleaned from the debates among the members of
the Constitutional Commission, they were aware that legally
binding international agreements were being entered into by
countries in forms other than a treaty. At the same time, it is
clear that they were also keen to preserve the concept of
"executive agreements" and the right of the President to enter
into such agreements.
What we can glean from the discussions of the Constitutional
Commissioners is that they understood the following realities:
1. Treaties, international agreements, and executive
agreements are all constitutional manifestations of
the conduct of foreign affairs with their distinct legal
characteristics.
a. Treaties are formal contracts between
the Philippines and other States-parties,
which are in the nature of international
agreements, and also of municipal laws in
the sense of their binding nature.226
b. International agreements are similar
instruments, the provisions of which may
require the ratification of a designated
number of parties thereto. These
agreements involving political issues or
changes in national policy, as well as those
involving international agreements of a
permanent character, usually take the form
of treaties. They may also include
commercial agreements, which are
executive agreements essentially, but
which proceed from previous authorization
by Congress, thus dispensing with the
requirement of concurrence by the
Senate.227
c. Executive agreements are generally
intended to implement a treaty already
enforced or to determine the details of the
implementation thereof that do not affect
the sovereignty of the State.228
2. Treaties and international agreements that cannot
be mere executive agreements must, by
constitutional decree, be concurred in by at least two-
thirds of the Senate.
3. However, an agreement - the subject of which is
the entry of foreign military troops, bases, or facilities
- is particularly restricted. The requirements are that
it be in the form of a treaty concurred in by the
Senate; that when Congress so requires, it be ratified
by a majority of the votes cast by the people in a
national referendum held for that purpose; and that it
be recognized as a treaty by the other contracting
State.
4. Thus, executive agreements can continue to exist
as a species of international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted
within the scope of her constitutional authority and discretion
when she chose to enter into the RP-U.S. Non-Surrender
Agreement in the form of an executive agreement, instead of a
treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic
presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious
validity, partaking as it does of the nature of a treaty; hence, it
must be duly concurred in by the Senate. x x x x. Pressing its
point, petitioner submits that the subject of the Agreement does
not fall under any of the subject-categories that xx x may be
covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is
not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international
relations. The primary consideration in the choice of the
form of agreement is the parties' intent and desire to craft
an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form
takes a back seat when it comes to effectiveness and binding
effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement
each labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact
that - save for the situation and matters contemplated in Sec.
25, Art. XVIII of the Constitution - when a treaty is required, the
Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified
as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would
put it, "executive altogether." The right of the President to
enter into or ratify binding executive agreements has been
confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-
028-03, then President Gloria Macapagal-Arroyo, represented
by the Secretary of Foreign Affairs, acted within the scope of
the authority and discretion vested in her by the
FINALS CONSTITUTION I ACJUCO 281
Constitution. At the end of the day, the President - by
ratifying, thru her deputies, the non-surrender agreement
- did nothing more than discharge a constitutional duty
and exercise a prerogative that pertains to her
office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be
given a larger measure of authority and wider discretion,
subject only to the least amount of checks and restrictions
under the Constitution.229 The rationale behind this power and
discretion was recognized by the Court in Vinuya v. Executive
Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the
Negotiation of International Agreements and its Ratification,
thus, correctly reflected the inherent powers of the President
when it stated that the DFA "shall determine whether an
agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the
Court does not look into whether an international agreement
should be in the form of a treaty or an executive agreement,
save in cases in which the Constitution or a statute requires
otherwise. Rather, in view of the vast constitutional powers and
prerogatives granted to the President in the field of foreign
affairs, the task of the Court is to determine whether the
international agreement is consistent with the applicable
limitations.
6. Executive agreements may cover the matter of foreign
military forces if it merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting
the details of a law or a treaty that already deals with the
presence of foreign military forces is not at all unusual in this
jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In
that case, the Court was asked to scrutinize the
constitutionality of the Terms of Reference of the Balikatan 02-
1 joint military exercises, which sought to implement the VFA.
Concluded in the form of an executive agreement, the Terms
of Reference detailed the coverage of the term "activities"
mentioned in the treaty and settled the matters pertaining to
the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the exercises;
the number of participants; and the extent of and limitations on
the activities of the U.S. forces. The Court upheld the Terms of
Reference as being consistent with the VFA. It no longer took
issue with the fact that the Balikatan Terms of Reference was
not in the form of a treaty concurred in by the Senate, even if it
dealt with the regulation of the activities of foreign military
forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the
use of an executive agreement in an attempt to adjust the
details of a provision of the VFA. The Philippines and the U.S.
entered into the Romulo-Kenney Agreement, which undertook
to clarify the detention of a U.S. Armed Forces member, whose
case was pending appeal after his conviction by a trial court for
the crime of rape. In testing the validity of the latter agreement,
the Court precisely alluded to one of the inherent limitations of
an executive agreement: it cannot go beyond the terms of the
treaty it purports to implement. It was eventually ruled that the
Romulo-Kenney Agreement was "not in accord" with the VFA,
since the former was squarely inconsistent with a provision in
the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of
Foreign Affairs to comply with the VFA and "forthwith negotiate
with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities
as provided in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the
following pronouncements to guide us in resolving the present
controversy:
1. Section 25, Article XVIII of the Constitution,
contains stringent requirements that must be fulfilled
by the international agreement allowing the presence
of foreign military bases, troops, or facilities in the
Philippines: (a) the agreement must be in the form of
a treaty, and (b) it must be duly concurred in by the
Senate.
2. If the agreement is not covered by the above
situation, then the President may choose the form of
the agreement (i.e., either an executive agreement
or a treaty), provided that the agreement dealing with
foreign military bases, troops, or facilities is not the
principal agreement that first allows their entry or
presence in the Philippines.
3. The executive agreement must not go beyond the
parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement;
and must not unduly expand the international
obligation expressly mentioned or necessarily
implied in the law or treaty.
4. The executive agreement must be consistent with
the Constitution, as well as with existing laws and
treaties.
In light of the President's choice to enter into EDCA in the form
of an executive agreement, respondents carry the burden of
proving that it is a mere implementation of existing laws and
treaties concurred in by the Senate. EDCA must thus be
carefully dissected to ascertain if it remains within the legal
parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and
framework of the MDT and the VFA
The starting point of our analysis is the rule that "an executive
agreement xx x may not be used to amend a treaty."234 In Lim
v. Executive Secretary and in Nicolas v. Romulo, the Court
approached the question of the validity of executive
agreements by comparing them with the general framework
and the specific provisions of the treaties they seek to
implement.
In Lim, the Terms of Reference of the joint military exercises
was scrutinized by studying "the framework of the treaty
antecedents to which the Philippines bound itself,"235 i.e., the
MDT and the VFA. The Court proceeded to examine the extent
of the term "activities" as contemplated in Articles 1 236 and
II237 of the VFA. It later on found that the term "activities" was
deliberately left undefined and ambiguous in order to permit "a
wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a
certain leeway in negotiation."239 The Court eventually ruled
that the Terms of Reference fell within the sanctioned or
allowable activities, especially in the context of the VFA and
the MDT.
The Court applied the same approach to Nicolas v. Romulo. It
studied the provisions of the VFA on custody and detention to
ascertain the validity of the Romulo-Kenney Agreement.240 It
eventually found that the two international agreements were
not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the
U.S. Embassy Compound and guarded by U.S. military
FINALS CONSTITUTION I ACJUCO 282
personnel, instead of by Philippine authorities. According to the
Court, the parties "recognized the difference between custody
during the trial and detention after conviction." 241 Pursuant to
Article V(6) of the VFA, the custody of a U.S. military personnel
resides with U.S. military authorities during trial. Once there is
a finding of guilt, Article V(l0) requires that the confinement or
detention be "by Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that
EDCA "substantially modifies or amends the VFA" 242and
follows with an enumeration of the differences between EDCA
and the VFA. While these arguments will be rebutted more fully
further on, an initial answer can already be given to each of the
concerns raised by his dissent.
The first difference emphasized is that EDCA does not only
regulate visits as the VFA does, but allows temporary
stationing on a rotational basis of U.S. military personnel and
their contractors in physical locations with permanent facilities
and pre-positioned military materiel.
This argument does not take into account that these
permanent facilities, while built by U.S. forces, are to be owned
by the Philippines once constructed.243 Even the VFA allowed
construction for the benefit of U.S. forces during their
temporary visits.
The second difference stated by the dissent is that EDCA
allows the prepositioning of military materiel, which can include
various types of warships, fighter planes, bombers, and
vessels, as well as land and amphibious vehicles and their
corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment,
vehicles, vessels, and aircraft to be brought into the country.
Articles VII and VIII of the VFA contemplates that U.S.
equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities
under the VFA. These provisions likewise provide for the
waiver of the specific duties, taxes, charges, and fees that
correspond to these equipment.
The third difference adverted to by the Justice Leonen's
dissent is that the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the use of territory
for launching military and paramilitary operations conducted in
other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat
activides only, whereas the entry and activities of U.S. forces
into Agreed Locations were borne of military necessity or had
a martial character, and were therefore not contemplated by
the VFA.246
This Court's jurisprudence however established in no uncertain
terms that combat-related activities, as opposed to actual
combat, were allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities
as opposed to combat itself such as the one subject of the
instant petition, are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot
be said to have strayed from the intent of the VFA since
EDCA's combat-related components are allowed under the
treaty.
Moreover, both the VFA and EDCA are silent on what these
activities actually are. Both the VFA and EDCA deal with the
presence of U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond Philippine
territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the
future the scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or blatantly
illegal provisions. Hence, we cannot invalidate EDCA on the
basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a
new concept not contemplated in the VFA or the MDT: Agreed
Locations, Contractors, Pre-positioning, and Operational
Control.248
As previously mentioned, these points shall be addressed fully
and individually in the latter analysis of EDCA's provisions.
However, it must already be clarified that the terms and details
used by an implementing agreement need not be found in the
mother treaty. They must be sourced from the authority derived
from the treaty, but are not necessarily expressed word-for-
word in the mother treaty. This concern shall be further
elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that
the VFA does not have provisions that may be construed as a
restriction on or modification of obligations found in existing
statues, including the jurisdiction of courts, local autonomy,
and taxation. Implied in this argument is that EDCA contains
such restrictions or modifications.249
This last argument cannot be accepted in view of the clear
provisions of EDCA. Both the VFA and EDCA ensure
Philippine jurisdiction in all instances contemplated by both
agreements, with the exception of those outlined by the VFA in
Articles III-VI. In the VFA, taxes are clearly waived whereas in
EDCA, taxes are assumed by the government as will be
discussed later on. This fact does not, therefore, produce a
diminution of jurisdiction on the part of the Philippines, but
rather a recognition of sovereignty and the rights that attend it,
some of which may be waived as in the cases under Articles
III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must
be compared with those of the MDT and the VFA, which are
the two treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized
activities" under EDCA: (1) U.S. personnel and (2) U.S.
contractors
The OSG argues250 that EDCA merely details existing policies
under the MDT and the VFA. It explains that EDCA articulates
the principle of defensive preparation embodied in Article II of
the MDT; and seeks to enhance the defensive, strategic, and
technological capabilities of both parties pursuant to the
objective of the treaty to strengthen those capabilities to
prevent or resist a possible armed attack. Respondent also
points out that EDCA simply implements Article I of the VFA,
which already allows the entry of U.S. troops and personnel
into the country. Respondent stresses this Court's recognition
in Lim v. Executive Secretary that U.S. troops and personnel
are authorized to conduct activities that promote the goal of
maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA
merely implement the MDT. According to them, the treaty does
not specifically authorize the entry of U.S. troops in the country
in order to maintain and develop the individual and collective
FINALS CONSTITUTION I ACJUCO 283
capacities of both the Philippines and the U.S. to resist an
armed attack. They emphasize that the treaty was concluded
at a time when there was as yet no specific constitutional
prohibition on the presence of foreign military forces in the
country.
Petitioners also challenge the argument that EDCA simply
implements the VFA. They assert that the agreement covers
only short-term or temporary visits of U.S. troops "from time to
time" for the specific purpose of combined military exercises
with their Filipino counterparts. They stress that, in contrast,
U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore,
there is some degree of permanence in the presence of U.S.
troops in the country, since the effectivity of EDCA is
continuous until terminated. They proceed to argue that while
troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into
Philippine territory is already allowed under the VFA
We shall first deal with the recognition under EDCA of the
presence in the country of three distinct classes of individuals
who will be conducting different types of activities within the
Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian
personnel; and (3) U.S. contractors. The agreement refers to
them as follows:
"United States personnel" means United States
military and civilian personnel temporarily in the territory
of the Philippines in connection with activities approved by
the Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United
States personnel and all property, equipment, and
materiel of the United States Armed Forces present in the
territory of the Philippines.253
"United States contractors" means companies and firms,
and their employees, under contract or subcontract to or
on behalf of the United States Department of Defense. United
States contractors are not included as part of the definition
of United States personnel in this Agreement, including
within the context of the VFA.254
United States forces may contract for any materiel,
supplies, equipment, and services (including construction)
to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or
person who provides such materiel, supplies, equipment,
or services. Such contracts shall be solicited, awarded, and
administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that
the agreement does not deal with the entry into the
country of U.S. personnel and contractors per se. While
Articles I(l)(b)256 and II(4)257 speak of "the right to access and
use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed
entry into Philippine territory, for which, unlike the VFA, EDCA
has no specific provision. Instead, Article II of the latter simply
alludes to the VFA in describing U.S. personnel, a term defined
under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government. Within this definition:
1. The term "military personnel" refers
to military members of the United States
Army, Navy, Marine Corps, Air Force,
and Coast Guard.
2. The term "civilian personnel" refers to
individuals who are neither nationals of
nor ordinarily resident in the
Philippines and who are employed by
the United States armed forces or who
are accompanying the United States
armed forces, such as employees of
the American Red Cross and the United
Services Organization.258
Article II of EDCA must then be read with Article III of the VFA,
which provides for the entry accommodations to be accorded
to U.S. military and civilian personnel:
1. The Government of the Philippines shall
facilitate the admission of United States
personnel and their departure from the Philippines
in connection with activities covered by this
agreement.
2. United States military personnel shall be
exempt from passport and visa regulations upon
enteringand departing the Philippines.
3. The following documents only, which shall be
required in respect of United States military
personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt
from visa requirements but shall present, upon
demand, valid passports upon entry and
departure of the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already
allows U.S. military and civilian personnel to be "temporarily in
the Philippines," so long as their presence is "in connection
with activities approved by the Philippine Government." The
Philippines, through Article III, even guarantees that it shall
facilitate the admission of U.S. personnel into the country and
grant exemptions from passport and visa regulations. The VFA
does not even limit their temporary presence to specific
locations.
Based on the above provisions, the admission and presence
of U.S. military and civilian personnel in Philippine
territory are already allowed under the VFA, the treaty
supposedly being implemented by EDCA. What EDCA has
effectively done, in fact, is merely provide the mechanism to
identify the locations in which U.S. personnel may perform
allowed activities pursuant to the VFA. As the implementing
agreement, it regulates and limits the presence of U.S.
personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S.
contractors into Philippine territory; their entry must be sourced
from extraneous Philippine statutes and regulations for the
admission of alien employees or business persons.
Of the three aforementioned classes of individuals who will be
conducting certain activities within the Agreed Locations, we
note that only U.S. contractors are not explicitly mentioned in
FINALS CONSTITUTION I ACJUCO 284
the VFA. This does not mean, though, that the recognition of
their presence under EDCA is ipso facto an amendment of the
treaty, and that there must be Senate concurrence before they
are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate
admission into the Philippines. Articles III and IV, in fact, merely
grant them the right of access to, and the authority to conduct
certain activities within the Agreed Locations. Since Article II(3)
of EDCA specifically leaves out U.S. contractors from the
coverage of the VFA, they shall not be granted the same entry
accommodations and privileges as those enjoyed by U.S.
military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part
of the Philippines to admit U.S. contractors into the
country.259 We emphasize that the admission of aliens into
Philippine territory is "a matter of pure permission and simple
tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors are
subject to Philippine immigration laws. 261The latter must
comply with our visa and passport regulations262 and prove
that they are not subject to exclusion under any provision of
Philippine immigration laws.263 The President may also deny
them entry pursuant to his absolute and unqualified power to
prohibit or prevent the admission of aliens whose presence in
the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary
power to expel or deport U.S. contractors 265 as may be
necessitated by national security, public safety, public health,
public morals, and national interest.266 They may also be
deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act 267 and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a
request for removal from the Philippine government before a
member of the U.S. personnel may be "dispos[ed] xx x outside
of the Philippines."
c. Authorized activities of U.S. military and civilian personnel
within Philippine territory are in furtherance of the MDT and the
VFA
We begin our analysis by quoting the relevant sections of the
MDT and the VFA that pertain to the activities in which U.S.
military and civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty,
the Parties separately and jointly byself-help and mutual
aid will maintain and develop their individual and
collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their
deputies, will consult together from time to time regarding
the implementation of this Treaty and whenever in the
opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened
by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense
Treaty of August 30, 1951;
Noting that from time to time elements of the United States
armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and
the Republic of the Philippines promotes their common
security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws
of the Republic of the Philippines and to abstain from any
activity inconsistent with the spirit of this agreement, and,
in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within
its authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials,
supplies, and other property imported into or acquired in
the Philippines by or on behalf of the United States armed
forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes
and other similar charges. Title to such property shall remain
with the United States, which may remove such property from
the Philippines at any time, free from export duties, taxes, and
other similar charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines in accordance with procedures
stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed
forces may enter the Philippines upon approval of the
Government of the Philippines. The movement of vessels
shall be in accordance with international custom and
practice governing such vessels, and such agreed
implementing arrangements as necessary. x x x
(Emphases Supplied)
Manifest in these provisions is the abundance of references to
the creation of further "implementing arrangements" including
the identification of "activities [to be] approved by the Philippine
Government." To determine the parameters of these
implementing arrangements and activities, we referred to the
content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in
which both countries shall engage in joint activities, so that
they can maintain and develop their defense capabilities. The
FINALS CONSTITUTION I ACJUCO 285
wording itself evidently invites a reasonable construction that
the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation 269 and the
subsequent practice270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim
v. Executive Secretary271 and Nicolas v. Romulo272 recognized
that Balikatan exercises, which are activities that seek to
enhance and develop the strategic and technological
capabilities of the parties to resist an armed attack, "fall
squarely under the provisions of the RP-US
MDT."273 In Lim, the Court especially noted that the Philippines
and the U.S. continued to conduct joint military exercises even
after the expiration of the MBA and even before the conclusion
of the VFA.274 These activities presumably related to the Status
of Forces Agreement, in which the parties agreed on the status
to be accorded to U.S. military and civilian personnel while
conducting activities in the Philippines in relation to the MDT. 275
Further, it can be logically inferred from Article V of the MDT
that these joint activities may be conducted on Philippine or on
U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan
territory of either of the Parties, or on the island territories
under its jurisdiction in the Pacific or on its armed forces,
public vessels or aircraft in the Pacific." Surely, in
maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately
and jointly by self-help and mutual aid, in the territories of the
contracting parties. It is reasonable to conclude that the
assessment of defense capabilities would entail understanding
the terrain, wind flow patterns, and other environmental factors
unique to the Philippines.
It would also be reasonable to conclude that a simulation of
how to respond to attacks in vulnerable areas would be part of
the training of the parties to maintain and develop their capacity
to resist an actual armed attack and to test and validate the
defense plan of the Philippines. It is likewise reasonable to
imagine that part of the training would involve an analysis of
the effect of the weapons that may be used and how to be
prepared for the eventuality. This Court recognizes that all of
this may require training in the area where an armed attack
might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction
with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military
and civilian personnel in the Philippines is "in connection with
activities approved by the Philippine Government." While the
treaty does not expressly enumerate or detail the nature of
activities of U.S. troops in the country, its Preamble makes
explicit references to the reaffirmation of the obligations of both
countries under the MDT. These obligations include the
strengthening of international and regional security in the
Pacific area and the promotion of common security interests.
The Court has already settled in Lim v. Executive
Secretary that the phrase "activities approved by the Philippine
Government" under Article I of the VFA was intended to be
ambiguous in order to afford the parties flexibility to adjust the
details of the purpose of the visit of U.S. personnel.276 In ruling
that the Terms of Reference for the Balikatan Exercises in
2002 fell within the context of the treaty, this Court explained:
After studied reflection, it appeared farfetched that
the ambiguity surrounding the meaning of the word
"activities" arose from accident. In our view, it
was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance
to protect the nation's marine resources, sea search-and-
rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that
"Balikatan 02-1," a "mutual anti-terrorism advising,
assisting and training exercise," falls under the umbrella
of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related
activities - as opposed to combat itself- such as the one subject
of the instant petition, are indeed authorized. (Emphases
Supplied)
The joint report of the Senate committees on foreign relations
and on national defense and security further explains the wide
range and variety of activities contemplated in the VFA, and
how these activities shall be identified: 277
These joint exercises envisioned in the VFA are not limited
to combat-related activities; they have a wide range and
variety. They include exercises that will reinforce the AFP's
ability to acquire new techniques of patrol and
surveillance to protect the country's maritime resources; sea-
search and rescue operations to assist ships in distress;
and disaster-relief operations to aid the civilian victims of
natural calamities, such as earthquakes, typhoons and tidal
waves.
xxxx
Joint activities under the VFA will include combat maneuvers;
training in aircraft maintenance and equipment repair; civic-
action projects; and consultations and meetings of the
Philippine-U.S. Mutual Defense Board. It is at the level of the
Mutual Defense Board-which is headed jointly by the Chief of
Staff of the AFP and the Commander in Chief of the U.S.
Pacific Command-that the VFA exercises are planned. Final
approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that
determines what activities will be conductedbetween the
armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the
presence, conduct and legal status of U.S. personnel while
they are in the country for visits, joint exercises and other
related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the
joint report of the Senate committees on foreign relations
and on national defense and security, and the ruling of this
Court in Lim is that the "activities" referred to in the treaty
are meant to be specified and
identified infurther agreements. EDCA is one such
agreement.
EDCA seeks to be an instrument that enumerates the
Philippine-approved activities of U.S. personnel referred to in
the VFA. EDCA allows U.S. military and civilian personnel to
perform "activities approved by the Philippines, as those terms
are defined in the VFA"278 and clarifies that these activities
include those conducted within the Agreed Locations:
FINALS CONSTITUTION I ACJUCO 286
1. Security cooperation exercises; joint and combined training
activities; humanitarian assistance and disaster relief activities;
and such other activities as may be agreed upon by the
Parties279
2. Training; transit; support and related activities; refueling of
aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations
for construction activities and other types of activity, including
alterations and improvements thereof281
4. Exercise of all rights and authorities within the Agreed
Locations that are necessary for their operational control or
defense, including the adoption of apfropriate measures to
protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities 283
6. Operation of their own telecommunication systems,
including the utilization of such means and services as are
required to ensure the full ability to operate telecommunication
systems, as well as the use of the necessary radio spectrum
allocated for this purpose284
According to Article I of EDCA, one of the purposes of these
activities is to maintain and develop, jointly and by mutual aid,
the individual and collective capacities of both countries to
resist an armed attack. It further states that the activities are in
furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those
under the Terms of Reference285 mentioned in Lim. Both
EDCA and the Terms of Reference authorize the U.S. to
perform the following: (a) participate in training exercises; (b)
retain command over their forces; (c) establish temporary
structures in the country; (d) share in the use of their respective
resources, equipment and other assets; and (e) exercise their
right to self-defense. We quote the relevant portion of the
Terms and Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop
billeting, classroom instruction and messing may be set
up for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US
Exercise Co-Directors under the authority of the Chief of Staff,
AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective
forces under the overall authority of the Exercise Co-
Directors. RP and US participants shall comply with
operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period
of not more than six months, with the projected participation of
660 US personnel and 3,800 RP Forces. The Chief of Staff,
AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month
Exercise period.
The Exercise is a mutual counter-terrorism advising,
assisting and training Exercise relative to Philippine efforts
against the ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat,
without prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise
only and do not create additional legal obligations between the
US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct
of mutual military assisting, advising
and trainingof RP and US Forces with the
primary objective of enhancing the
operational capabilities of both forces to
combat terrorism.
b. At no time shall US Forces operate
independently within RP territory.
c. Flight plans of all aircraft involved in the
exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance
with their respective laws and regulations, in the use of their
resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and
framework of the MDT and the VFA, we find that EDCA has
remained within the parameters set in these two treaties. Just
like the Terms of Reference mentioned in Lim, mere
adjustments in detail to implement the MDT and the VFA can
be in the form of executive agreements.
Petitioners assert287 that the duration of the activities
mentioned in EDCA is no longer consistent with the temporary
nature of the visits as contemplated in the VFA. They point out
that Article XII(4) of EDCA has an initial term of 10 years, a
term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such
length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro
likewise argues in her Concurring and Dissenting Opinion that
the VFA contemplated mere temporary visits from U.S. forces,
whereas EDCA allows an unlimited period for U.S. forces to
stay in the Philippines.288
However, the provisions of EDCA directly contradict this
argument by limiting itself to 10 years of effectivity. Although
this term is automatically renewed, the process for terminating
FINALS CONSTITUTION I ACJUCO 287
the agreement is unilateral and the right to do so automatically
accrues at the end of the 10 year period. Clearly, this method
does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could
not have been by chance that the VFA does not include a
maximum time limit with respect to the presence of U.S.
personnel in the country. We construe this lack of specificity as
a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the
"adjustment in detail" stage of the implementation of the treaty.
We interpret the subsequent, unconditional concurrence of the
Senate in the entire text of the VFA as an implicit grant to the
President of a margin of appreciation in determining the
duration of the "temporary" presence of U.S. personnel in the
country.
Justice Brion's dissent argues that the presence of U.S. forces
under EDCA is "more permanent" in nature. 289However, this
argument has not taken root by virtue of a simple glance at its
provisions on the effectivity period. EDCA does not grant
permanent bases, but rather temporary rotational access to
facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes
rotational access to facilities of the Armed Forces of the
Philippines – but not permanent bases which are prohibited
under the Philippine Constitution - with the result of reducing
response time should an external threat from a common
adversary crystallize.290
EDCA is far from being permanent in nature compared to the
practice of states as shown in other defense cooperation
agreements. For example, Article XIV(l) of the U.S.-Romania
defense agreement provides the following:
This Agreement is concluded for an indefinite period and
shall enter into force in accordance with the internal laws of
each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces
Agreement reads:
This Agreement has been concluded for an indefinite period
of time. It may be terminated by written notification by either
Party and in that event it terminates 2 years after the receipt of
the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support
Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs
I-VIII, and Annexes A and B, shall become effective on the date
of the last signature affixed below and shall remain in force
until terminated by the Parties, provided that it may be
terminated by either Party upon 180 days written notice of its
intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force
Posture Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and
thereafter shall continue in force, but may be terminated by
either Party at any time upon one year's written notice to the
other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia
treaty but with a term less than half of that is provided in the
latter agreement. This means that EDCA merely follows the
practice of other states in not specifying a non-extendible
maximum term. This practice, however, does not automatically
grant a badge of permanency to its terms. Article XII(4) of
EDCA provides very clearly, in fact, that its effectivity is for an
initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply
illogical to conclude that the initial, extendible term of 10 years
somehow gives EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the
constitutional role of the President who, as Commander-in-
Chief of our armed forces, is the principal strategist of the
nation and, as such, duty-bound to defend our national
sovereignty and territorial integrity;291 who, as chief architect of
our foreign relations, is the head policymaker tasked to assess,
ensure, and protect our national security and interests; 292 who
holds the most comprehensive and most confidential
information about foreign countries 293 that may affect how we
conduct our external affairs; and who has unrestricted access
to highly classified military intelligence data294 that may
threaten the life of the nation. Thus, if after a geopolitical
prognosis of situations affecting the country, a belief is
engendered that a much longer period of military training is
needed, the President must be given ample discretion to adopt
necessary measures including the flexibility to set an extended
timetable.
Due to the sensitivity and often strict confidentiality of these
concerns, we acknowledge that the President may not always
be able to candidly and openly discuss the complete situation
being faced by the nation. The Chief Executive's hands must
not be unduly tied, especially if the situation calls for crafting
programs and setting timelines for approved activities. These
activities may be necessary for maintaining and developing our
capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national
interests. If the Senate decides that the President is in the best
position to define in operational terms the meaning
of temporary in relation to the visits, considered individually or
in their totality, the Court must respect that policy decision. If
the Senate feels that there is no need to set a time limit to these
visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in
regard to the extent of the "temporary" nature of the visits of
U.S. personnel does not suggest that the duration to which the
President may agree is unlimited. Instead, the boundaries of
the meaning of the term temporary in Article I of the treaty must
be measured depending on the purpose of each visit or
activity.295 That purpose must be analyzed on a case-by-case
basis depending on the factual circumstances surrounding the
conclusion of the implementing agreement. While the validity
of the President's actions will be judged under less stringent
standards, the power of this Court to determine whether there
was grave abuse of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within
Philippine territory - who were legitimately permitted to enter
the country independent of EDCA - are subject to relevant
Philippine statutes and regulations and must be consistent with
the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's
purported practice of hiring private security contractors in other
countries. They claim that these contractors - one of which has
already been operating in Mindanao since 2004 - have been
implicated in incidents or scandals in other parts of the globe
involving rendition, torture and other human rights violations.
They also assert that these contractors employ paramilitary
forces in other countries where they are operating.
FINALS CONSTITUTION I ACJUCO 288
Under Articles III and IV of EDCA, U.S. contractors are
authorized to perform only the following activities:
1. Training; transit; support and related activities;
refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel;
communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may
agree297
2. Prepositioning and storage of defense equipment,
supplies, and materiel, including delivery,
management, inspection, use, maintenance, and
removal of such equipment, supplies and materiel 298
3. Carrying out of matters in accordance with, and to
the extent permissible under, U.S. laws, regulations,
and policies299
EDCA requires that all activities within Philippine territory be in
accordance with Philippine law. This means that certain
privileges denied to aliens are likewise denied to foreign
military contractors. Relevantly, providing security300and
carrying, owning, and possessing firearms301 are illegal for
foreign civilians.
The laws in place already address issues regarding the
regulation of contractors. In the 2015 Foreign Investment
Negative list,302 the Executive Department has already
identified corporations that have equity restrictions in
Philippine jurisdiction. Of note is No. 5 on the list - private
security agencies that cannot have any foreign equity by virtue
of Section 4 of Republic Act No. 5487; 303 and No. 15, which
regulates contracts for the construction of defense-related
structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue
of EDCA must subscribe to corporate and civil requirements
imposed by the law, depending on the entity's corporate
structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the
regulation of the activities of U.S. contractors has been clear
even to some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn
Marine, was accused of spilling fuel in the waters off Manila
Bay.304 The Senate Committee on Foreign Relations and the
Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations
by the contractor.305 The U.S. Navy investigated the contractor
and promised stricter guidelines to be imposed upon its
contractors.306 The statement attributed to Commander Ron
Steiner of the public affairs office of the U.S. Navy's 7th Fleet -
that U.S. Navy contractors are bound by Philippine laws - is of
particular relevance. The statement acknowledges not just the
presence of the contractors, but also the U.S. position that
these contractors are bound by the local laws of their host
state. This stance was echoed by other U.S. Navy
representatives.307
This incident simply shows that the Senate was well aware of
the presence of U.S. contractors for the purpose of fulfilling the
terms of the VFA. That they are bound by Philippine law is clear
to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted
access to the Agreed Locations, all their activities must be
consistent with Philippine laws and regulations and pursuant to
the MDT and the VFA.
While we recognize the concerns of petitioners, they do not
give the Court enough justification to strike down EDCA. In Lim
v. Executive Secretary, we have already explained that we
cannot take judicial notice of claims aired in news reports, "not
because of any issue as to their truth, accuracy, or impartiality,
but for the simple reason that facts must be established in
accordance with the rules of evidence."308 What is more, we
cannot move one step ahead and speculate that the alleged
illegal activities of these contractors in other countries would
take place in the Philippines with certainty. As can be seen
from the above discussion, making sure that U.S. contractors
comply with Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are
explicitly excluded from the coverage of the VFA. As visiting
aliens, their entry, presence, and activities are subject to all
laws and treaties applicable within the Philippine territory. They
may be refused entry or expelled from the country if they
engage in illegal or undesirable activities. There is nothing that
prevents them from being detained in the country or being
subject to the jurisdiction of our courts. Our penal laws, 309 labor
laws,310 and immigrations laws311 apply to them and therefore
limit their activities here. Until and unless there is another law
or treaty that specifically deals with their entry and activities,
their presence in the country is subject to unqualified Philippine
jurisdiction.
EDCA does not allow the presence of U.S.-owned or -
controlled military facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the
establishment of U.S. military bases through the
"euphemistically" termed "Agreed Locations. "312 Alluding to
the definition of this term in Article II(4) of EDCA, they point out
that these locations are actually military bases, as the definition
refers to facilities and areas to which U.S. military forces have
access for a variety of purposes. Petitioners claim that there
are several badges of exclusivity in the use of the Agreed
Locations by U.S. forces. First, Article V(2) of EDCA alludes to
a "return" of these areas once they are no longer needed by
U.S. forces, indicating that there would be some transfer of
use. Second, Article IV(4) ofEDCA talks about American
forces' unimpeded access to the Agreed Locations for all
matters relating to the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of
EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked
provisions of EDCA by presenting so-called "badges of
exclusivity," despite the presence of contrary provisions within
the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA.
However, the use of the word "return" is within the context of a
lengthy provision. The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed
Locations, or any portion thereof, including non-relocatable
structures and assemblies constructed, modified, or improved
by the United States, once no longer required by United States
forces for activities under this Agreement. The Parties or the
Designated Authorities shall consult regarding the terms of
FINALS CONSTITUTION I ACJUCO 289
return of any Agreed Locations, including possible
compensation for improvements or construction.
The context of use is "required by United States forces for
activities under this Agreement." Therefore, the return of an
Agreed Location would be within the parameters of an activity
that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession
by the U.S. prior to its return of the Agreed Location would be
based on the authority given to it by a joint body co-chaired by
the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National
Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the
Philippines and the U.S., or through their Designated
Authorities. This provision, seen as a whole, contradicts
petitioners' interpretation of the return as a "badge of
exclusivity." In fact, it shows the cooperation and partnership
aspect of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed
from a contextual perspective. Article IV(4) states that U.S.
forces and U.S. contractors shall have "unimpeded access to
Agreed Locations for all matters relating to the prepositioning
and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and
materiel."
At the beginning of Article IV, EDCA states that the Philippines
gives the U.S. the authority to bring in these equipment,
supplies, and materiel through the MDB and SEB security
mechanism. These items are owned by the U.S., 314 are
exclusively for the use of the U.S.315 and, after going through
the joint consent mechanisms of the MDB and the SEB, are
within the control of the U.S.316 More importantly, before these
items are considered prepositioned, they must have gone
through the process of prior authorization by the MDB and the
SEB and given proper notification to the AFP. 317
Therefore, this "unimpeded access" to the Agreed Locations is
a necessary adjunct to the ownership, use, and control of the
U.S. over its own equipment, supplies, and materiel and must
have first been allowed by the joint mechanisms in play
between the two states since the time of the MDT and the VFA.
It is not the use of the Agreed Locations that is exclusive per
se; it is mere access to items in order to exercise the rights of
ownership granted by virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public
utilities and to operate their own telecommunications system,
it will be met and answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent
of and in fact bears a one-to-one correspondence with the
provisions of the 1947 MBA. They assert that both agreements
(a) allow similar activities within the area; (b) provide for the
same "species of ownership" over facilities; and (c) grant
operational control over the entire area. Finally, they
argue320 that EDCA is in fact an implementation of the new
defense policy of the U.S. According to them, this policy was
not what was originally intended either by the MDT or by the
VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners 321 simply show that
under the MBA, the U.S. had the right to construct, operate,
maintain, utilize, occupy, garrison, and control the bases. The
so-called parallel provisions of EDCA allow only operational
control over the Agreed Locations specifically for construction
activities. They do not allow the overarching power to operate,
maintain, utilize, occupy, garrison, and control a base with full
discretion. EDCA in fact limits the rights of the U.S. in respect
of every activity, including construction, by giving the MDB and
the SEB the power to determine the details of all activities such
as, but not limited to, operation, maintenance, utility,
occupancy, garrisoning, and control. 322
The "species of ownership" on the other hand, is distinguished
by the nature of the property. For immovable property
constructed or developed by the U.S., EDCA expresses that
ownership will automatically be vested to the Philippines. 323 On
the other hand, for movable properties brought into the
Philippines by the U.S., EDCA provides that ownership is
retained by the latter. In contrast, the MBA dictates that the
U.S. retains ownership over immovable and movable
properties.
To our mind, both EDCA and the MBA simply incorporate what
is already the law of the land in the Philippines. The Civil
Code's provisions on ownership, as applied, grant the owner
of a movable property full rights over that property, even if
located in another person's property. 324
The parallelism, however, ends when the situation involves
facilities that can be considered immovable. Under the MBA,
the U.S. retains ownership if it paid for the facility.325 Under
EDCA, an immovable is owned by the Philippines, even if built
completely on the back of U.S. funding.326 This is consistent
with the constitutional prohibition on foreign land ownership. 327
Despite the apparent similarity, the ownership of property is but
a part of a larger whole that must be considered before the
constitutional restriction is violated. Thus, petitioners' points on
operational control will be given more attention in the
discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed
Moreover, a direct comparison of the MBA and EDCA will
result in several important distinctions that would allay
suspicion that EDCA is but a disguised version of the MBA.
b. There are substantial matters that the US. cannot do under
EDCA, but which it was authorized to do under the 1947 MBA
The Philippine experience with U.S. military bases under the
1947 MBA is simply not possible under EDCA for a number of
important reasons.
First, in the 1947 MBA, the U.S. retained all rights of
jurisdiction in and over Philippine territory occupied by
American bases. In contrast, the U.S. under EDCA does not
enjoy any such right over any part of the Philippines in which
its forces or equipment may be found. Below is a comparative
table between the old treaty and EDCA:
1947 MBA/ 1946 Treaty of EDCA
General Relations
1947 MBA, Art. I(1): EDCA, preamble:
The Government of the Affirming that the Parties
Republic of share an understanding for
the Philippines (hereinafter the United States not to
referred to as the establish a permanent
Philippines) grants to the military presence or base
Government of the United
States of America
FINALS CONSTITUTION I ACJUCO 290
(hereinafter referred to as
the United States) the right
to retain the use of the
bases in the
Philippines listed in Annex
A attached hereto.
1947 MBA, Art. XVII(2):
All buildings and
structures which
are erected by the United
States in the bases shall be
the property of the United
States and may be
removed by it before the
expiration of this Agreement
or the earlier relinquishment
of the base on which the
structures are situated.
There shall be no obligation
on the part of the Philippines
or of the United States to
rebuild or repair any
destruction or damage
inflicted from any cause
whatsoever on any of the
said buildings or structures
owned or used by the United
States in the bases. x x x x.
1946 Treaty of Gen.
Relations, Art. I:
The United States of
America agrees to withdraw
and surrender, and does
hereby withdraw and
surrender, all rights of
possession, supervision,
jurisdiction, control or
sovereignty existing and
exercised by the United
States of America in and
over the territory and the
people of the Philippine
Islands, except the use of
such bases, necessary
appurtenances to such
bases, and the rights
incident thereto, as the
United States of America, by
agreement with the
Republic of the Philippines
may deem necessary to
retain for the mutual
protection of the Republic of
the Philippines and of the
United States of America. x
x x.
Second, in the bases agreement, the U.S. and the Philippines
were visibly not on equal footing when it came to deciding
whether to expand or to increase the number of bases, as the
Philippines may be compelled to negotiate with the U.S. the
in the territory of the
moment the latter requested an expansion of the existing
Philippines;
bases or to acquire additional bases. In EDCA, U.S. access is
purely at the invitation of the Philippines.
xxxx
1947 MBA/ 1946 Treaty of EDCA
Recognizing that all United
States access to and use of General Relations
facilities and areas will be at
1947 MBA, Art.I(3): EDCA, preamble:
the invitation of the
Philippines and with full
respect for the Philippine The Philippines agree to Recognizing that all United
Constitution and enter into States access to and use of
Philippine laws; negotiations with the facilities and areas will be at
United States at the the invitation of the
latter's request, to permit Philippines and with full
xxxx
the United States to respect for the Philippine
expand such bases, to Constitution and
EDCA, Art. II(4): exchange such bases for Philippine laws;
other bases, to acquire
"Agreed additional bases, or
xxxx
Locations" means facilities relinquish rights to bases, as
and areas that are provided any of such exigencies may
be required by military EDCA. Art. II(4):
by the Government of the
Philippines through the AFP necessity.
and that United States "Agreed
forces, United States 1946 Treaty of Gen. Locations" means facilities
contractors, and others as Relations, Art. I: and areas that are provided
mutually agreed, shall have by the Government of the
the right to access and use Philippines through the AFP
The United States of and that United States
pursuant to this Agreement.
America agrees to forces, United States
Such Agreed Locations may
withdraw and surrender, contractors, and others as
be listed in an annex to be
and does hereby withdraw mutually agreed, shall have
appended to this Agreement,
and surrender, all rights of the right to access and use
and may be further described
possession, supervision, pursuant to this Agreement.
in implementing
jurisdiction, control or Such Agreed Locations may
arrangements.
sovereignty existing and be listed in an annex to be
exercised by the United
appended to this Agreement,
EDCA, Art. V: States of America in and and may be further described
over the territory and the
in implementing
1. people of the Philippine arrangements.
The Philippines shall retain Islands, except the use of
ownership of and title to such bases, necessary
Agreed Locations. appurtenances to such
bases, and the rights
incident thereto, as the
xxxx United States of America,
by agreement with the
4. All buildings, non- Republic of the
relocatable structures, and Philippines may deem
assemblies affixed to the necessary to retain for the
land in the Agreed mutual protection of the
Locations, including ones Republic of the Philippines
altered or improved by and of the United States of
United States forces, remain America. x x x.
the property of the
Philippines.Permanent
buildings constructed by Third, in EDCA, the Philippines is- guaranteed access over the
United States forces become entire area of the Agreed Locations. On the other hand, given
the property of the that the U.S. had complete control over its military bases under
Philippines, once the 1947 MBA, the treaty did not provide for any express
constructed, but shall be recognition of the right of access of Philippine authorities.
used by United States forces Without that provision and in light of the retention of U.S.
until no longer required by sovereignty over the old military bases, the U.S. could
United States forces. effectively prevent Philippine authorities from entering those
bases.
1947 MBA EDCA
No equivalent provision. EDCA, Art. III(5):
FINALS CONSTITUTION I ACJUCO 291

The Philippine Designated the vicinity of, the

Authority and its bases which
authorized are necessary to
representative shall have provide access
access to the entire area of to them, or
the Agreed Locations. appropriate for
Such access shall be their control.
provided promptly consistent
with operational safety and
security requirements in Fifth, the U.S. under the bases agreement was given the
accordance with agreed authority to use Philippine territory for additional staging areas,
procedures developed by bombing and gunnery ranges. No such right is given under
the Parties. EDCA, as seen below:

Fourth, in the bases agreement, the U.S. retained the right, 1947 MBA EDCA
power, and authority over the establishment, use, operation,
defense, and control of military bases, including the limits of 1947 MBA, Art. EDCA, Art. III(1):
territorial waters and air space adjacent to or in the vicinity of VI:
those bases. The only standard used in determining the extent With consideration of the views of
of its control was military necessity. On the other hand, there The United the Parties,
is no such grant of power or authority under EDCA. It merely States shall, the Philippines hereby authorizes and
allows the U.S. to exercise operational control over the subject to agrees that United States forces, United
construction of Philippine-owned structures and facilities: previous States contractors, and vehicles,
agreement with vessels, and aircraft operated by or for
the Philippines, United States forces may conduct the
1947 MBA EDCA have the right to following activities with respect to
use land and Agreed Locations: training; transit;
1947 MBA, EDCA, Art. III(4): coastal sea support and related activities; refueling
Art.I(2):
areas of of aircraft; bunkering of vessels;
The Philippines hereby grants to the appropriate size temporary maintenance of vehicles,
The Philippines United States, through bilateral and location for vessels, and aircraft; temporary
agrees to permit security mechanisms, such as the periodic accommodation of personnel;
the United MDB and SEB, operational maneuvers, for communications; prepositioning of
States, upon control of Agreed additional equipment, supplies, and materiel;
notice to the Locations for construction staging areas, deploying forces and materiel; and such
Philippines, to use activities and authority to undertake bombing and other activities as the Parties may
such of those such activities on, and make gunnery agree.
bases listed in alterations and improvements to, ranges, and for
Annex B as the Agreed Locations. United States such
United States forces shall consult on issues intermediate
determines to be regarding such construction, airfields as may
required by alterations, and be required for
military improvements based on the Parties' safe and efficient
necessity. shared intent that the technical air operations.
requirements and construction Operations in
standards of any such projects such areas shall
1947 MBA, Art.
III(1): undertaken by or on behalf of United be carried on
States forces should be consistent with with due regard
the requirements and standards of and safeguards
It is mutually both Parties. for the public
agreed that safety.
the United
Statesshall have
the rights, power 1947 MBA,
and authority Art.I(2):
within the
bases which The Philippines
are necessary for agrees to permit
the the United
establishment, States, upon
use, operation notice to the
and defense Philippines,
thereof or to use such of
appropriate for those
the control bases listed in
thereof and all the Annex B as the
rights, power and United States
authority within determines to
the limits of be required by
territorial waters military
and air space necessity.
adjacent to, or in
FINALS CONSTITUTION I ACJUCO 292

Sixth, under the MBA, the U.S. was given the right, power, and
It is mutually agreed that When requested, the
authority to control and prohibit the movement and operation
the United States may Designated Authority of the
of all types of vehicles within the vicinity of the bases. The U.S.
employ and use for United Philippines shall assist
does not have any right, power, or authority to do so under
States military forces any in facilitating transit or
EDCA.
and all public utilities, temporary access by
other services and United States forces to
facilities, airfields, ports, public land and facilities
1947 MBA EDCA
harbors, roads, highways, (including roads, ports, and
1947 MBA, Art. 111(2)(c) No equivalent provision. railroads, bridges, viaducts, airfields), including those
canals, lakes, rivers and owned or controlled by local
streams in the governments, and to other
Such rights, power and Philippines under land and facilities (including
authority shall include, inter conditions no less roads, ports, and airfields).
alia, the right, power and favorable than those that
authority: x x x x to may be applicablefrom time
control (including the to time to the military
right to prohibit) in so far as forces of the Philippines.
may be required for the
efficient operation and safety
of the bases, and within the Ninth, under EDCA, the U.S. no longer has the right, power,
limits of military and authority to construct, install, maintain, and
necessity, anchorages, employ any type of facility, weapon, substance, device, vessel
moorings, landings, or vehicle, or system unlike in the old treaty. EDCA merely
takeoffs, movements and grants the U.S., through bilateral security mechanisms, the
operation of ships and authority to undertake construction, alteration, or
water-borne craft, aircraft improvements on the Philippine-owned Agreed Locations.
and other vehicles on
water, in the air or on land
comprising 1947 MBA EDCA

1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Seventh, under EDCA, the U.S. is merely given temporary
access to land and facilities (including roads, ports, and
Such rights, power and The Philippines hereby
airfields). On the other hand, the old treaty gave the U.S. the
authority shall include, inter grants to the United States,
right to improve and deepen the harbors, channels, entrances,
alia, the right, power and through bilateral security
and anchorages; and to construct or maintain necessary roads
authority: x x x x mechanisms, such as the
and bridges that would afford it access to its military bases.
to construct, install, MDB and SEB, operational
maintain, and employ on control of Agreed Locations
1947 MBA EDCA any base any for construction activities
type of facilities, weapons, and authority to undertake
1947 MBA, Art. III(2)(b): EDCA, Art. III(2): substance, device, vessel such activities on, and
or vehicle on or under the make alterations and
ground, in the air or on or improvements to, Agreed
Such rights, power and When requested, the under the water that may be Locations. United States
authority shall include, inter Designated Authority of the requisite or appropriate, forces shall consult on
alia, the right, power and Philippines shall assist including meteorological issues regarding such
authority: x x x x to in facilitating transit or systems, aerial and water construction, alterations,
improve and deepen the temporary access by navigation lights, radio and and improvements based on
harbors, channels, United States forces to radar apparatus and the Parties' shared intent
entrances and public land and facilities electronic devices, of any that the technical
anchorages, and to (including roads, ports, and desired power, type of requirements and
construct or maintain airfields), including those emission and frequency. construction standards of
necessary roadsand owned or controlled by local any such projects
bridges affording access to governments, and to other undertaken by or on behalf
the bases. land and facilities (including of United States forces
roads, ports, and airfields). should be consistent with the
requirements and standards
of both Parties.
Eighth, in the 1947 MBA, the U.S. was granted the automatic
right to use any and all public utilities, services and facilities,
airfields, ports, harbors, roads, highways, railroads, bridges, Tenth, EDCA does not allow the U.S. to acquire, by
viaducts, canals, lakes, rivers, and streams in the Philippines condemnation or expropriation proceedings, real property
in the same manner that Philippine military forces enjoyed that belonging to any private person. The old military bases
right. No such arrangement appears in EDCA. In fact, it merely agreement gave this right to the U.S. as seen below:
extends to U.S. forces temporary access to public land and
facilities when requested:
1947 MBA EDCA

1947 MBA EDCA 1947 MBA, Art. XXII(l): No equivalent provision.

1947 MBA, Art. VII: EDCA, Art. III(2):

FINALS CONSTITUTION I ACJUCO 293
Whenever it is necessary
to acquire by
condemnation or
expropriation proceedings
real property belonging to
any private
persons, associations or
corporations located in
bases named in Annex A
and Annex B in order to
carry out the purposes of this
Agreement, the Philippines
will institute and prosecute
such condemnation or
expropriation proceedings in
accordance with the laws of
the Philippines. The United
States agrees to reimburse
the Philippines for all the
reasonable expenses,
damages and costs therebv
incurred, including the value
of the property as
determined by the Court. In
addition, subject to the
mutual agreement of the two
Governments, the United
States will reimburse the
Philippines for the
reasonable costs of
transportation and removal
of any occupants displaced
or ejected by reason of the
condemnation or
expropriation.
Eleventh, EDCA does not allow the U.S. to unilaterally bring
into the country non-Philippine nationals who are under its
employ, together with their families, in connection with the
construction, maintenance, or operation of the bases. EDCA
strictly adheres to the limits under the VFA.
1947 MBA
1947 MBA, Art. XI(l):
It is mutually agreed that
the United States shall
have the right to bring into
the Philippines members of
the United States military
forces and the United
States nationals employed
by or under a contract with
the United States together
with their families, and
technical personnel of
other nationalities (not
being persons excluded by
the laws of the Philippines)
in connection with the
construction, maintenance,
or operation of the bases.
The United States shall
make suitable arrangements
so that such persons may be
readily identified and their
status established when
necessary by the Philippine
authorities. Such persons, the definition of United
other than members of the States personnel in this
United States armed forces Agreement, including
in uniform, shall present their within the context of the
travel documents to the VFA.
appropriate Philippine
authorities for visas, it being
understood that no
objection will be made to
their travel to the
Philippines as non-
immigrants.
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction
over any offense committed by any person within the Agreed
Locations, unlike in the former military bases:
1947 MBA EDCA
1947 MBA, Art. XIII(l)(a): No equivalent provision.
The Philippines consents
that the United
States shall have the right
to exercise
jurisdiction over the
following offenses: (a) Any
offense committed by any
person within any
base except where the
offender and offended
parties are both Philippine
citizens (not members of the
armed forces of the United
States on active duty) or the
offense is against the
security of the Philippines.
Thirteenth, EDCA does not allow the U.S. to operate military
post exchange (PX) facilities, which is free of customs duties
and taxes, unlike what the expired MBA expressly allowed.
EDCA Parenthetically, the PX store has become the cultural icon of
U.S. military presence in the country.
EDCA, Art. II:
1. "United States 1947 MBA EDCA
personnel" means United
States military and civilian 1947 MBA, Art. XVIII(l): No equivalent provision.
personneltemporarily in the
territory of the Philippines in It is mutually agreed that
connection with activities the United States
approved by the
Philippines, as those terms
are defined in the VFA. shall have the right to
establish on bases, free of
all licenses; fees; sales,
x xx x excise or other taxes, or
imposts; Government
3. "United States agencies, including
contractors" means concessions, such
companies and firms, and as sales commissaries
their employees, under and post
contract or subcontract to or exchanges; messes and
on behalf of the United social clubs, for the
States Department of exclusive use of the
Defense. United States United States military
contractors are not forces and authorized
includedas part of civilian personnel and
FINALS CONSTITUTION I ACJUCO 294

750 hectares Radio Transmitter in Capas, Tarlac

their families. The
merchandise or services
sold or dispensed by such 900 hectares Radio Bigot Annex at Bamban,
agencies shall be free of all Tarlac329
taxes, duties and
inspection by the The Bases Conversion and Development Act of 1992
Philippine described its coverage in its Declaration of Policies:
authorities. Administrative
measures shall be taken by
the appropriate authorities of Sec. 2. Declaration of Policies. - It is hereby declared the policy
the United States to prevent of the Government to accelerate the sound and balanced
the resale of goods which conversion into alternative productive uses of the Clark and
are sold under the provisions Subic military reservations and their extensions (John Hay
of this Article to persons not Station, Wallace Air Station, O'Donnell Transmitter Station,
entitled to buy goods at such San Miguel Naval Communications Station and Capas Relay
agencies and, generally, to Station), to raise funds by the sale of portions of Metro Manila
prevent abuse of the military camps, and to apply said funds as provided herein for
privileges granted under this the development and conversion to productive civilian use of
Article. There shall be the lands covered under the 194 7 Military Bases Agreement
cooperation between such between the Philippines and the United States of America, as
authorities and the amended.330
Philippines to this end.
The result of the debates and subsequent voting is Section 25,
Article XVIII of the Constitution, which specifically restricts,
In sum, EDCA is a far cry from a basing agreement as was among others, foreign military facilities or bases. At the time of
understood by the people at the time that the 1987 Constitution its crafting of the Constitution, the 1986 Constitutional
was adopted. Commission had a clear idea of what exactly it was restricting.
While the term "facilities and bases" was left undefined, its
Nevertheless, a comprehensive review of what the point of reference was clearly those areas covered by the 1947
Constitution means by "foreign military bases" and "facilities" MBA as amended.
is required before EDCA can be deemed to have passed
judicial scrutiny. Notably, nearly 30 years have passed since then, and the ever-
evolving world of military technology and geopolitics has
c. The meaning of military facilities and bases surpassed the understanding of the Philippine people in 1986.
The last direct military action of the U.S. in the region was the
use of Subic base as the staging ground for Desert Shield and
An appreciation of what a military base is, as understood by Desert Storm during the Gulf War.331In 1991, the Philippine
the Filipino people in 1987, would be vital in determining Senate rejected the successor treaty of the 1947 MBA that
whether EDCA breached the constitutional restriction. would have allowed the continuation of U.S. bases in the
Philippines.
Prior to the drafting of the 1987 Constitution, the last definition
of "military base" was provided under Presidential Decree No. Henceforth, any proposed entry of U.S. forces into the
(PD) 1227.328 Unlawful entry into a military base is punishable Philippines had to evolve likewise, taking into consideration the
under the decree as supported by Article 281 of the Revised subsisting agreements between both parties, the rejection of
Penal Code, which itself prohibits the act of trespass. the 1991 proposal, and a concrete understanding of what was
constitutionally restricted. This trend birthed the VFA which, as
Section 2 of the law defines the term in this manner: "'[M]ilitary discussed, has already been upheld by this Court.
base' as used in this decree means any military, air, naval, or
coast guard reservation, base, fort, camp, arsenal, yard, The latest agreement is EDCA, which proposes a novel
station, or installation in the Philippines." concept termed "Agreed Locations."

Commissioner Tadeo, in presenting his objections to U.S.
presence in the Philippines before the 1986 Constitutional
Commission, listed the areas that he considered as military
bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces,
United States contractors, and others as mutually agreed, shall
have the right to access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an annex to be
appended to this Agreement, and may be further described in
implementing arrangements.332
Preliminarily, respondent already claims that the proviso that
the Philippines shall retain ownership of and title to the Agreed
Locations means that EDCA is "consistent with Article II of the
VFA which recognizes Philippine sovereignty and jurisdiction
over locations within Philippine territory.333

15,000 hectares Subic Naval Base By this interpretation, respondent acknowledges that the
contention of petitioners springs from an understanding that
1,000 hectares San Miguel Naval Communication the Agreed Locations merely circumvent the constitutional
FINALS CONSTITUTION I ACJUCO 295
restrictions. Framed differently, the bone of contention is
whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers
Section 25, Article XVIII, and makes Senate concurrence
a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the
U.S. is authorized by the Philippines to "conduct the following
activities: "training; transit; support and related activities;
refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning
of equipment, supplies and materiel; deploying forces and
materiel; and such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper
interpretation of the Section 25 restriction.
d. Reasons for the constitutional requirements and legal
standards for constitutionally compatible military bases and
facilities
Section 25 does not define what is meant by a "foreign military
facility or base." While it specifically alludes to U.S. military
facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those
bases existing at the time and to any future facility or base. The
basis for the restriction must first be deduced from the spirit of
the law, in order to set a standard for the application of its text,
given the particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional
Commissioners to glean, from their collective wisdom, the
intent of Section 25. Their speeches are rich with history and
wisdom and present a clear picture of what they considered in
the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption
of the anti-bases provisions with what purports to be an
objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to
have been taken to underscore the inequity in their inception
as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military
and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if the world
and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the
presence of the military bases on our sovereignty -
whether in its legal or political sense is not clear - and the
theory that any country with foreign bases in its territory
cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty
and independence have now assumed the totality principle,
such that a willing assumption of some delimitations in the
exercise of some aspects thereof would put that State in a
lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the
pros and cons on the advisability of having military bases within
our shores. Most of us who, only about three months ago, were
just mulling the prospects of these varying contentions are now
expected, like armchair generals, to decide not only on the
geopolitical aspects and contingent implications of the military
bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora
of questions, such as: 1) whether the bases are magnets of
nuclear attack or are deterrents to such attack; 2) whether an
alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and
North Korea is outweighed by the support for us of the ASEAN
countries, the United States, South Korea, Taiwan, Australia
and New Zealand; and 4) whether the social, moral and legal
problems spawned by the military bases and their operations
can be compensated by the economic benefits outlined in
papers which have been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical,
unequivocal and forceful assertions of their positions. They are
entitled to the luxury of the absolutes. We are urged now to
adopt the proposed declaration as a "golden," "unique"
and "last" opportunity for Filipinos to assert their
sovereign rights. Unfortunately, I have never been enchanted
by superlatives, much less for the applause of the moment or
the ovation of the hour. Nor do I look forward to any glorious
summer after a winter of political discontent. Hence, if I may
join Commissioner Laurel, I also invoke a caveat not only
against the tyranny of labels but also the tyranny of slogans. 336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the
resolution of the problem of the removal of foreign bases from
the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments
adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own
destiny without outside interference;
2. That no lasting peace and no true
sovereignty would ever be achieved so long as
there are foreign military forces in our country;
3. That the presence of foreign military bases
deprives us of the very substance of national
sovereigntyand this is a constant source of national
embarrassment and an insult to our national dignity
and selfrespect as a nation;
4. That these foreign military bases unnecessarily
expose our country to devastating nuclear
attacks;
5. That these foreign military bases create social
problems and are designed to perpetuate the
strangle-hold of United States interests in our
national economy and development;
6. That the extraterritorial rights enjoyed by these
foreign bases operate to deprive our country of
jurisdiction over civil and criminal
offenses committed within our own national territory
and against Filipinos;
FINALS CONSTITUTION I ACJUCO 296
7. That the bases agreements are colonial
impositions and dictations upon our helpless
country; and
8. That on the legal viewpoint and in the ultimate
analysis, all the bases agreements are null and
void ab initio, especially because they did not count
the sovereign consent and will of the Filipino
people.338
xxxx
In the real sense, Madam President, if we in the Commission
could accommodate the provisions I have cited, what is our
objection to include in our Constitution a matter as priceless as
the nationalist values we cherish? A matter of the gravest
concern for the safety and survival of this nation indeed
deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-
respect as a nation and the future of generations to come with
thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear
weapons wherever they are found and whoever owns them is
that those are for killing people or for terrorizing
humanity. This objective by itself at any point in history is
morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on
nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to
be primarily to remove the bases because even if the bases
are removed, the girls mired in poverty will look for their
clientele elsewhere. The remedy to the problem of prostitution
lies primarily elsewhere - in an alert and concerned citizenry, a
healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of
foreign military bases here is that they impair portions of
our sovereignty. While I agree that our country's sovereignty
should not be impaired, I also hold the view that there are times
when it is necessary to do so according to the imperatives of
national interest. There are precedents to this effect. Thus,
during World War II, England leased its bases in the West
Indies and in Bermuda for 99 years to the United States for its
use as naval and air bases. It was done in consideration of 50
overaged destroyers which the United States gave to England
for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to
the United States for the latter's use as a naval base in the
Indian Ocean. About the same time, the United States obtained
bases in Spain, Egypt and Israel. In doing so, these countries,
in effect, contributed to the launching of a preventive defense
posture against possible trouble in the Middle East and in the
Indian Ocean for their own protection. 345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian
nations, the presence of American troops in the country is a
projection of America's security interest. Enrile said that
nonetheless, they also serve, although in an incidental and
secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission,
namely: It is ideal for us as an independent and sovereign
nation to ultimately abrogate the RP-US military treaty
and, at the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention
of American military bases in the Philippines provided that
such an extension from one period to another shall be
concluded upon concurrence of the parties, and such
extension shall be based on justice, the historical amity of
the people of the Philippines and the United States and
their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission
started with this task of framing a constitution, I read a
statement of President Aquino to the effect that she is for the
removal of the U.S. military bases in this country but that the
removal of the U.S. military bases should not be done just to
give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries which
have importance to their strategy for world domination. The
Philippines is one such country.
Madam President, I submit that I am one of those ready to
completely remove any vestiges of the days of
enslavement, but not prepared to erase them if to do so would
merely leave a vacuum to be occupied by a far worse type. 350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today.
Consider our brethren in the Middle East, in Indo-China,
Central America, in South Africa - there has been escalation of
war in some of these areas because of foreign intervention
which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been
used as springboards for intervention in some of these
conflicts. We should not allow ourselves to be party to the
warlike mentality of these foreign interventionists. We
must always be on the side of peace – this means that we
should not always rely on military solution. 352
xxxx
FINALS CONSTITUTION I ACJUCO 297
x x x The United States bases, therefore, are springboards
for intervention in our own internal affairs and in the
affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should
safeguard its fundamental freedoms which should logically be
declared in black and white in our fundamental law of the land
- the Constitution. Let us express our desire for national
sovereignty so we may be able to achieve national self-
determination. Let us express our desire for neutrality so that
we may be able to follow active nonaligned independent
foreign policies. Let us express our desire for peace and a
nuclear-free zone so we may be able to pursue a healthy and
tranquil existence, to have peace that is autonomous and not
imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S.
military bases? Para sa magbubukid, ang kahulugan nito
ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S.
military bases ay tinik sa dibdib ng sambayanang
Pilipinong patuloy na nakabaon. Para sa sambayanang
magbubukid, ang ibig sabihin ng U.S. military
bases ay batong pabigat na patuloy na pinapasan ng
sambayanang Pilipino. Para sa sambayanang magbubukid,
ang pananatili ng U.S. military bases ay isang nagdudumilat
na katotohanan ng patuloy na paggahasa ng
imperyalistang Estados Unidos sa ating Inang Bayan -
economically, politically and culturally. Para sa
sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa
sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves
from the instruments of domination and subservience has
clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare
my support for the committee's position to enshrine in the
Constitution a fundamental principle forbidding foreign military
bases, troops or facilities in any part of the Philippine territory
as a clear and concrete manifestation of our inherent right
to national self-determination, independence and
sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes
of genuine nationhood to the social cost of allowing foreign
countries to maintain military bases in our country. Previous
speakers have dwelt on this subject, either to highlight its
importance in relation to the other issues or to gloss over its
significance and !llake this a part of future negotiations. 357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases
is one of the solutions and is the response of the Filipino people
against this condition and other conditions that have already
been clearly and emphatically discussed in past deliberations.
The deletion, therefore, of Section 3 in the Constitution we are
drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively
respond to the continuing violation of our territorial
integrity via the military bases agreement which permits
the retention of U.S. facilities within the Philippine soil
over which our authorities have no exclusive jurisdiction
contrary to the accepted definition of the exercise of
sovereignty.
Second, consent by this forum, this Constitutional
Commission, to an exception in the application of a
provision in the Bill of Rights that we have just drafted
regarding equal application of the laws of the land to all
inhabitants, permanent or otherwise, within its territorial
boundaries.
Third, the continued exercise by the United States of
extraterritoriality despite the condemnations of such practice
by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of
colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic
sovereignty, in the hope that such can be wielded to force the
United States government to concede to better terms and
conditions concerning the military bases agreement, including
the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we
have to suffer all existing indignities and disrespect towards
our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of
foreign military bases as essentially a question of
sovereignty which does not require in-depth studies or
analyses and which this forum has, as a constituent assembly
drafting a constitution, the expertise and capacity to decide on
except that it lacks the political will that brought it to existence
and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our
country, if we reclaim, restore, uphold and defend our national
sovereignty. National sovereignty is what the military
bases issue is all about. It is only the sovereign people
exercising their national sovereignty who can design an
independent course and take full control of their national
destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee
report, specifically Sections 3 and 4 on neutrality, nuclear and
bases-free country, some views stress sovereignty of the
Republic and even invoke survival of the Filipino nation
and people.361
FINALS CONSTITUTION I ACJUCO 298
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the
provisions of the committee report to dismantle the American
bases after 1991 only show the urgent need to free our
country from the entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess
expertise to know that the so-called RP-US Bases Agreement
will expire in 1991, that it infringes on our sovereignty and
jurisdiction as well as national dignity and honor, that it goes
against the UN policy of disarmament and that it
constitutes unjust intervention in our internal
affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow
foreign military bases, troops, or facilities, subject to the
provisions of Section 25. It is thus important to read its
discussions carefully. From these discussions, we can deduce
three legal standards that were articulated by the
Constitutional Commission Members. These are
characteristics of any agreement that the country, and by
extension this Court, must ensure are observed. We can
thereby determine whether a military base or facility in the
Philippines, which houses or is accessed by foreign military
troops, is foreign or remains a Philippine military base or
facility. The legal standards we find applicable are:
independence from foreign control, sovereignty and applicable
law, and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the
time of the Constitution's drafting was aimed at asserting
Philippine independence from the U.S., as well as control over
our country's territory and military.
Under the Civil Code, there are several aspects of control
exercised over property.
Property is classified as private or public. 365 It is public if
"intended for public use, such as roads, canals, rivers, torrents,
ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character[,]" or "[t]hose which
belong to the State, without being for public use, and are
intended for some public service or for the development of the
national wealth. "366
Quite clearly, the Agreed Locations are contained within a
property for public use, be it within a government military camp
or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership
flow freely. Article 428 of the Civil Code provides that "[t]he
owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law." Moreover, the
owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the
owner of property, even against those who hold the property.
Possession, after all, merely raises a disputable presumption
of ownership, which can be contested through normal judicial
processes.367
In this case, EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine
govemment.368 What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use
is consistent with the Civil Code, since the owner may dispose
of the property in whatever way deemed fit, subject to the limits
of the law. So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by agreement
does not completely divest the owner of the rights over the
property, but may only limit them in accordance with law.
Hence, even control over the property is something that an
owner may transmit freely. This act does not translate into the
full transfer of ownership, but only of certain rights. In Roman
Catholic Apostolic Administrator of Davao, Inc. v. Land
Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the
foreign national's control over the property. 370
EDCA, in respect of its provisions on Agreed Locations, is
essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to
public land and facilities.371 The activities carried out within
these locations are subject to agreement as authorized by the
Philippine govemment.372 Granting the U.S. operational control
over these locations is likewise subject to EDCA' s security
mechanisms, which are bilateral procedures involving
Philippine consent and cooperation. 373 Finally, the Philippine
Designated Authority or a duly designated representative is
given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S.
control, which was so feared by the Constitutional
Commission. In fact, they seem to have been the product of
deliberate negotiation from the point of view of the Philippine
government, which balanced constitutional restrictions on
foreign military bases and facilities against the security needs
of the country. In the 1947 MBA, the U.S. forces had "the right,
power and authority x x x to construct (including dredging and
filling), operate, maintain, utilize, occupy, garrison and control
the bases."375 No similarly explicit provision is present in
EDCA.
Nevertheless, the threshold for allowing the presence of
foreign military facilities and bases has been raised by the
present Constitution. Section 25 is explicit that foreign military
bases, troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by the
Senate. Merely stating that the Philippines would retain
ownership would do violence to the constitutional requirement
if the Agreed Locations were simply to become a less obvious
manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the
Constitution, the committee rejected a specific provision
proposed by Commissioner Sarmiento. The discussion
illuminates and provides context to the 1986 Constitutional
Commission's vision of control and independence from the
U.S., to wit:
MR. SARMIENTO: Madam President, my proposed
amendment reads as follows: "THE STATE SHALL
ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-
RELIANT ARMED FORCES OF THE PHILIPPINES." Allow
me to briefly explain, Madam President. The Armed Forces of
the Philippines is a vital component of Philippine society
depending upon its training, orientation and support. It will
either be the people's protector or a staunch supporter of a
FINALS CONSTITUTION I ACJUCO 299
usurper or tyrant, local and foreign interest. The Armed
Forces of the Philippines' past and recent experience
shows it has never been independent and self-
reliant. Facts, data and statistics will show that it has been
substantially dependent upon a foreign power. In March 1968,
Congressman Barbero, himself a member of the Armed Forces
of the Philippines, revealed top secret documents showing
what he described as U.S. dictation over the affairs of the
Armed Forces of the Philippines. He showed that under
existing arrangements, the United States unilaterally
determines not only the types and quantity of arms and
equipments that our armed forces would have, but also
the time when these items are to be made available to us.
It is clear, as he pointed out, that the composition,
capability and schedule of development of the Armed
Forces of the Philippines is under the effective control of
the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement
in the 1987 Constitution that would assert "independent" and
"self-reliant" armed forces. This proposal was rejected by
the committee, however. As Commissioner De Castro
asserted, the involvement of the Philippine military with
the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times:
that the limited resources of the Philippines and the current
insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in
any way control the Philippine military despite this relationship
and the fact that the former would furnish military hardware or
extend military assistance and training to our military. Rather,
he claimed that the proposal was in compliance with the
treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my
speech on U.S. military bases on 12 September 1986, I spoke
on the selfreliance policy of the armed forces. However, due to
very limited resources, the only thing we could do is
manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the
Philippines for failure to provide the necessary funds to make
the Philippine Armed Forces self-reliant. Indeed that is a
beautiful dream. And I would like it that way. But as of this time,
fighting an insurgency case, a rebellion in our country -
insurgency - and with very limited funds and very limited
number of men, it will be quite impossible for the Philippines to
appropriate the necessary funds therefor. However, if we say
that the U.S. government is furnishing us the military
hardware, it is not control of our armed forces or of our
government. It is in compliance with the Mutual Defense
Treaty. It is under the military assistance program that it
becomes the responsibility of the United States to furnish us
the necessary hardware in connection with the military bases
agreement. Please be informed that there are three (3) treaties
connected with the military bases agreement; namely: the RP-
US Military Bases Agreement, the Mutual Defense Treaty and
the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and
we are furnished the military hardware pursuant to that
treaty, it is not in control of our armed forces nor control
of our government. True indeed, we have military officers
trained in the U.S. armed forces school. This is part of our
Military Assistance Program, but it does not mean that the
minds of our military officers are for the U.S. government, no. I
am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people.
Also, while we are sending military officers to train or to study
in U.S. military schools, we are also sending our officers to
study in other military schools such as in Australia, England
and in Paris. So, it does not mean that when we send military
officers to United States schools or to other military schools,
we will be under the control of that country. We also have
foreign officers in our schools, we in the Command and
General Staff College in Fort Bonifacio and in our National
Defense College, also in Fort Bonifacio. 377 (Emphases
supplied)
This logic was accepted in Tañada v. Angara, in which the
Court ruled that independence does not mean the absence of
foreign participation:
Furthermore, the constitutional policy of a "self-reliant and
independent national economy" does not necessarily rule
out the entry of foreign investments, goods and services.
It contemplates neither "economic seclusion" nor "mendicancy
in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional
policy:
Economic self reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in
the development of natural resources and public
utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military
facilities and bases is therefore the assertion of independence
from the U.S. and other foreign powers, as independence is
exhibited by the degree of foreign control exerted over these
areas.1âwphi1 The essence of that independence is self-
governance and self-control.379 Independence itself is "[t]he
state or condition of being free from dependence, subjection,
or control. "380
Petitioners assert that EDCA provides the U.S. extensive
control and authority over Philippine facilities and locations,
such that the agreement effectively violates Section 25 of the
1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act
as necessary for "operational control and defense." The term
"operational control" has led petitioners to regard U.S. control
over the Agreed Locations as unqualified and, therefore,
total.382 Petitioners contend that the word "their" refers to the
subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate
measure to protect United States forces and United States
contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their,"
as understood above, is a possessive pronoun for the subject
"they," a third-person personal pronoun in plural form. Thus,
"their" cannot be used for a non-personal subject such as
"Agreed Locations." The simple grammatical conclusion is that
"their" refers to the previous third-person plural noun, which is
"United States forces." This conclusion is in line with the
definition of operational control.
a. U.S. operational control as the exercise of authority over
U.S. personnel, and not over the Agreed Locations
FINALS CONSTITUTION I ACJUCO 300
Operational control, as cited by both petitioner and
respondents, is a military term referring to
[t]he authority to perform those functions of command over
subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objective,
and giving authoritative direction necessary to accomplish the
mission.383
At times, though, operational control can mean something
slightly different. In JUSMAG Philippines v. National Labor
Relations Commission, the Memorandum of Agreement
between the AFP and JUSMAG Philippines defined the term
as follows:384
The term "Operational Control" includes, but is not limited to,
all personnel administrative actions, such as: hiring
recommendations; firing recommendations; position
classification; discipline; nomination and approval of incentive
awards; and payroll computation.
Clearly, traditional standards define "operational control" as
personnel control. Philippine law, for instance, deems
operational control as one exercised by police officers and
civilian authorities over their subordinates and is distinct from
the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises
operational control over the police within the municipal
government,386 just as city mayor possesses the same power
over the police within the city government.387
Thus, the legal concept of operational control involves
authority over personnel in a commander-subordinate
relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated
in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect
United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have
operational control over its own forces, in much the same way
that the Philippines exercises operational control over its own
units.
For actual operations, EDCA is clear that any activity must be
planned and pre-approved by the MDB-SEB.388 This provision
evinces the partnership aspect of EDCA, such that both
stakeholders have a say on how its provisions should be put
into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational
control over personnel, qualifying access to the Agreed
Locations by the Philippine Designated Authority with the
phrase "consistent with operational safety and security
requirements in accordance with agreed procedures
developed by the Parties" leads to the conclusion that the U.S.
exercises effective control over the Agreed Locations. 389 They
claim that if the Philippines exercises possession of and control
over a given area, its representative should not have to be
authorized by a special provision.390
For these reasons, petitioners argue that the "operational
control" in EDCA is the "effective command and control" in the
1947 MBA.391 In their Memorandum, they distinguish effective
command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the
United States, Joint Publication 1, "command and control (C2)"
is defined as "the exercise of authority and direction by a
properly designated commander over assigned and attached
forces in the accomplishment of the mission x x
x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the
composition of subordinate forces, the assignment of tasks,
the designation of objectives, the overall control of assigned
resources, and the full authoritative direction necessary to
accomplish the mission."394
Two things demonstrate the errors in petitioners' line of
argument.
Firstly, the phrase "consistent with operational safety and
security requirements in accordance with agreed procedures
developed by the Parties" does not add any qualification
beyond that which is already imposed by existing treaties. To
recall, EDCA is based upon prior treaties, namely the VFA and
the MDT.395 Treaties are in themselves contracts from which
rights and obligations may be claimed or waived. 396 In this
particular case, the Philippines has already agreed to abide by
the security mechanisms that have long been in place between
the U.S. and the Philippines based on the implementation of
their treaty relations.397
Secondly, the full document cited by petitioners contradicts the
equation of "operational control" with "effective command and
control," since it defines the terms quite differently, viz:398
Command and control encompasses the exercise of authority,
responsibility, and direction by a commander over assigned
and attached forces to accomplish the mission. Command at
all levels is the art of motivating and directing people and
organizations into action to accomplish missions. Control is
inherent in command. To control is to manage and direct forces
and functions consistent with a commander's command
authority. Control of forces and functions helps commanders
and staffs compute requirements, allocate means, and
integrate efforts. Mission command is the preferred method of
exercising C2. A complete discussion of tenets, organization,
and processes for effective C2 is provided in Section B,
"Command and Control of Joint Forces," of Chapter V "Joint
Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than
COCOM. It is the authority to perform those functions of
command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating
objectives, and giving authoritative direction over all aspects of
military operations and joint training necessary to accomplish
the mission. It should be delegated to and exercised by the
commanders of subordinate organizations; normally, this
authority is exercised through subordinate JFCs, Service,
and/or functional component commanders. OPCON provides
authority to organize and employ commands and forces as the
commander considers necessary to accomplish assigned
missions. It does not include authoritative direction for logistics
or matters of administration, discipline, internal organization, or
unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to
delineate functional responsibilities and operational areas of
subordinate JFCs.
Operational control is therefore the delegable aspect of
combatant command, while command and control is the
overall power and responsibility exercised by the commander
with reference to a mission. Operational control is a narrower
power and must be given, while command and control is
plenary and vested in a commander. Operational control does
not include the planning, programming, budgeting, and
FINALS CONSTITUTION I ACJUCO 301
execution process input; the assignment of subordinate
commanders; the building of relationships with Department of
Defense agencies; or the directive authority for logistics,
whereas these factors are included in the concept of command
and control.400
This distinction, found in the same document cited by
petitioners, destroys the very foundation of the arguments they
have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only
for construction activitites
As petitioners assert, EDCA indeed contains a specific
provision that gives to the U.S. operational control within the
Agreed Locations during construction activities. 401 This
exercise of operational control is premised upon the approval
by the MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and
standards of the construction, alteration, or improvement. 402
Despite this grant of operational control to the U.S., it must be
emphasized that the grant is only for construction activities.
The narrow and limited instance wherein the U.S. is given
operational control within an Agreed Location cannot be
equated with foreign military control, which is so abhorred by
the Constitution.
The clear import of the provision is that in the absence of
construction activities, operational control over the Agreed
Location is vested in the Philippine authorities. This meaning
is implicit in the specific grant of operational control only during
construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means
the failure to mention the thing becomes the ground for
inferring that it was deliberately excluded. 403Following this
construction, since EDCA mentions the existence of U.S.
operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not
exercised over other activities.
Limited control does not violate the Constitution. The fear of
the commissioners was total control, to the point that the
foreign military forces might dictate the terms of their acts
within the Philippines.404 More important, limited control does
not mean an abdication or derogation of Philippine sovereignty
and legal jurisdiction over the Agreed Locations. It is more akin
to the extension of diplomatic courtesies and rights to
diplomatic agents,405 which is a waiver of control on a limited
scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the
framers of the Constitution: that the Philippines must retain
sovereignty and jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United
States not to establish a permanent military presence or base
in the territory of the Philippines." Further on, it likewise states
the recognition that "all United States access to and use of
facilities and areas will be at the invitation of the Philippines
and with full respect for the Philippine Constitution and
Philippine laws."
The sensitivity of EDCA provisions to the laws of the
Philippines must be seen in light of Philippine sovereignty and
jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power, 406 while
jurisdiction is the conferment by law of power and authority to
apply the law.407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines. (Emphasis
supplied)
From the text of EDCA itself, Agreed Locations are territories
of the Philippines that the U.S. forces are allowed to access
and use.408 By withholding ownership of these areas and
retaining unrestricted access to them, the government asserts
sovereignty over its territory. That sovereignty exists so long
as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for
security with respect to the Agreed Locations. 410Hence,
Philippine law remains in force therein, and it cannot be said
that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with
Philippine authorities.411
Jurisprudence bears out the fact that even under the former
legal regime of the MBA, Philippine laws continue to be in force
within the bases.412 The difference between then and now is
that EDCA retains the primary jurisdiction of the Philippines
over the security of the Agreed Locations, an important
provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the
peace and enforced Philippine law in the bases. In this
instance, Philippine forces act as peace officers, in stark
contrast to the 1947 MBA provisions on jurisdiction. 413
iii. Third standard: must respect national security and territorial
integrity
The last standard this Court must set is that the EDCA
provisions on the Agreed Locations must not impair or threaten
the national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the
evolution of technology has essentially rendered the prior
notion of permanent military bases obsolete.
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can
stay afloat in the sea even for months and years without
returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a
limited scope. It does not allow, for instance, the re-
establishment of the Subic military base or the Clark Air Field
as U.S. military reservations. In this context, therefore, this
Court has interpreted the restrictions on foreign bases, troops,
or facilities as three independent restrictions. In accord with
FINALS CONSTITUTION I ACJUCO 302
this interpretation, each restriction must have its own
qualification.
Petitioners quote from the website http://en.wikipedia.org to
define what a military base is.415 While the source is not
authoritative, petitioners make the point that the Agreed
Locations, by granting access and use to U.S. forces and
contractors, are U.S. bases under a different name. 416 More
important, they claim that the Agreed Locations invite
instances of attack on the Philippines from enemies of the
U.S.417
We believe that the raised fear of an attack on the Philippines
is not in the realm of law, but of politics and policy. At the very
least, we can say that under international law, EDCA does not
provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the
Agreed Locations simply because of the presence of U.S.
personnel. Article 2(4) of the United Nations Charter states that
"All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." 418 Any
unlawful attack on the Philippines breaches the treaty, and
triggers Article 51 of the same charter, which guarantees the
inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in
question, international humanitarian law standards prevent
participants in an armed conflict from targeting non-
participants. International humanitarian law, which is the
branch of international law applicable to armed conflict,
expressly limits allowable military conduct exhibited by forces
of a participant in an armed conflict.419 Under this legal regime,
participants to an armed conflict are held to specific standards
of conduct that require them to distinguish between
combatants and non-combatants,420 as embodied by the
Geneva Conventions and their Additional Protocols. 421
Corollary to this point, Professor John Woodcliffe, professor of
international law at the University of Leicester, noted that there
is no legal consensus for what constitutes a base, as opposed
to other terms such as "facilities" or "installation." 422 In strategic
literature, "base" is defined as an installation "over which the
user State has a right to exclusive control in an extraterritorial
sense."423 Since this definition would exclude most foreign
military installations, a more important distinction must be
made.
For Woodcliffe, a type of installation excluded from the
definition of "base" is one that does not fulfill a combat role. He
cites an example of the use of the territory of a state for training
purposes, such as to obtain experience in local geography and
climactic conditions or to carry out joint exercises.424 Another
example given is an advanced communications technology
installation for purposes of information gathering and
communication.425 Unsurprisingly, he deems these non-
combat uses as borderline situations that would be excluded
from the functional understanding of military bases and
installations.426
By virtue of this ambiguity, the laws of war dictate that the
status of a building or person is presumed to be protected,
unless proven otherwise.427 Moreover, the principle of
distinction requires combatants in an armed conflict to
distinguish between lawful targets 428 and protected
targets.429 In an actual armed conflict between the U.S. and a
third state, the Agreed Locations cannot be considered U.S.
territory, since ownership of territory even in times of armed
conflict does not change.430
Hence, any armed attack by forces of a third state against an
Agreed Location can only be legitimate under international
humanitarian law if it is against a bona fide U.S. military base,
facility, or installation that directly contributes to the military
effort of the U.S. Moreover, the third state's forces must take
all measures to ensure that they have complied with the
principle of distinction (between combatants and non-
combatants).
There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and
national security in the event an Agreed Location is subjected
to attack. As EDCA stands, it does not create the situation so
feared by petitioners - one in which the Philippines, while not
participating in an armed conflict, would be legitimately
targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom
of allowing the presence of U.S. personnel within our territory
and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to
"agreed" locations, areas, or facilities within the military base
of another sovereign state is nothing new on the international
plane. In fact, this arrangement has been used as the
framework for several defense cooperation agreements, such
as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation
Agreement432
2. 2009 U.S.-Colombia Defense Cooperation
Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense
Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces
access to their military bases.437 That access is without rental
or similar costs to the U.S.438 Further, U.S. forces are allowed
to undertake construction activities in, and make alterations
and improvements to, the agreed locations, facilities, or
areas.439 As in EDCA, the host states retain ownership and
jurisdiction over the said bases.440
In fact, some of the host states in these agreements give
specific military-related rights to the U.S. For example, under
Article IV(l) of the US.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized
access to and may use agreed facilities and areas x x x for
staging and deploying of forces and materiel, with the purpose
of conducting x x x contingency operations and other missions,
including those undertaken in the framework of the North
Atlantic Treaty." In some of these agreements, host countries
allow U.S. forces to construct facilities for the latter’s exclusive
use.441
Troop billeting, including construction of temporary structures,
is nothing new. In Lim v. Executive Secretary, the Court
already upheld the Terms of Reference of Balikatan 02-
1, which authorized U.S. forces to set up "[t]emporary
structures such as those for troop billeting, classroom
instruction and messing x x x during the Exercise." Similar
provisions are also in the Mutual Logistics Support Agreement
of 2002 and 2007, which are essentially executive agreements
FINALS CONSTITUTION I ACJUCO 303
that implement the VFA, the MDT, and the 1953 Military
Assistance Agreement. These executive agreements similarly
tackle the "reciprocal provision of logistic support, supplies,
and services,"442 which include "[b ]illeting, x x x operations
support (and construction and use of temporary structures
incident to operations support), training services, x x x storage
services, x x x during an approved activity." 443 These logistic
supplies, support, and services include temporary use of
"nonlethal items of military equipment which are not
designated as significant military equipment on the U.S.
Munitions List, during an approved activity."444 The first Mutual
Logistics Support Agreement has lapsed, while the second one
has been extended until 2017 without any formal objection
before this Court from the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are
analogous to those in the aforementioned executive
agreements. Instead of authorizing the building of temporary
structures as previous agreements have done, EDCA
authorizes the U.S. to build permanent structures or alter or
improve existing ones for, and to be owned by, the
Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly
constructed permanent or non-relocatable structures.446 Under
EDCA, U.S. forces will also be allowed to use facilities and
areas for "training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications" and
agreed activities.447
Concerns on national security problems that arise from foreign
military equipment being present in the Philippines must
likewise be contextualized. Most significantly, the VFA
already authorizes the presence of U.S. military
equipment in the country. Article VII of the VFA already
authorizes the U.S. to import into or acquire in the Philippines
"equipment, materials, supplies, and other property" that will
be used "in connection with activities" contemplated therein.
The same section also recognizes that "[t]itle to such property
shall remain" with the US and that they have the discretion to
"remove such property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the
prepositioning and storing of "defense equipment, supplies,
and materiel,"448 since these are sanctioned in the VFA. In fact,
the two countries have already entered into various
implementing agreements in the past that are comparable to
the present one. The Balikatan 02-1 Terms of Reference
mentioned in Lim v. Executive Secretary specifically
recognizes that Philippine and U.S. forces "may share x x x in
the use of their resources, equipment and other assets." Both
the 2002 and 2007 Mutual Logistics Support Agreements
speak of the provision of support and services, including the
"construction and use of temporary structures incident to
operations support" and "storage services" during approved
activities.449 These logistic supplies, support, and services
include the "temporary use of x x x nonlethal items of military
equipment which are not designated as significant military
equipment on the U.S. Munitions List, during an approved
activity."450Those activities include "combined exercises and
training, operations and other deployments" and "cooperative
efforts, such as humanitarian assistance, disaster relief and
rescue operations, and maritime anti-pollution operations"
within or outside Philippine territory. 451 Under EDCA, the
equipment, supplies, and materiel that will be prepositioned at
Agreed Locations include "humanitarian assistance and
disaster relief equipment, supplies, and materiel. " 452 Nuclear
weapons are specifically excluded from the materiel that will
be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it
increases the threat to our national security. If anything, EDCA
increases the likelihood that, in an event requiring a defensive
response, the Philippines will be prepared alongside the U.S.
to defend its islands and insure its territorial integrity pursuant
to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language
of the MDT only refers to mutual help and defense in the Pacific
area.453 We believe that any discussion of the activities to be
undertaken under EDCA vis-a-vis the defense of areas beyond
the Pacific is premature. We note that a proper petition on that
issue must be filed before we rule thereon. We also note that
none of the petitions or memoranda has attempted to discuss
this issue, except only to theorize that the U.S. will not come to
our aid in the event of an attack outside of the Pacific. This is
a matter of policy and is beyond the scope of this judicial
review.
In reference to the issue on telecommunications, suffice it to
say that the initial impression of the facility adverted to does
appear to be one of those that require a public franchise by
way of congressional action under Section 11, Article XII of the
Constitution. As respondents submit, however, the system
referred to in the agreement does not provide
telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the
telecommunication system is solely for the use of the U.S. and
not the public in general, and that this system will not interfere
with that which local operators use. Consequently, a public
franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons
within Philippine territory is entirely speculative. It is noteworthy
that the agreement in fact specifies that the prepositioned
materiel shall not include nuclear weapons. 455Petitioners argue
that only prepositioned nuclear weapons are prohibited by
EDCA; and that, therefore, the U.S. would insidiously bring
nuclear weapons to Philippine territory. 456 The general
prohibition on nuclear weapons, whether prepositioned or not,
is already expressed in the 1987 Constitution. 457 It would be
unnecessary or superfluous to include all prohibitions already
in the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption,
which under the law must originate from Congress. This
allegation ignores jurisprudence on the government's
assumption of tax liability. EDCA simply states that the taxes
on the use of water, electricity, and public utilities are for the
account of the Philippine Government. 458 This provision
creates a situation in which a contracting party assumes the
tax liability of the other.459 In National Power Corporation v.
Province of Quezon, we distinguished between enforceable
and unenforceable stipulations on the assumption of tax
liability. Afterwards, we concluded that an enforceable
assumption of tax liability requires the party assuming the
liability to have actual interest in the property taxed. 460 This rule
applies to EDCA, since the Philippine Government stands to
benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces,
disaster preparation, and the preferential use of Philippine
suppliers.461 Hence, the provision on the assumption of tax
liability does not constitute a tax exemption as petitioners have
posited.
Additional issues were raised by petitioners, all relating
principally to provisions already sufficiently addressed above.
This Court takes this occasion to emphasize that the
agreement has been construed herein as to absolutely
disauthorize the violation of the Constitution or any applicable
statute. On the contrary, the applicability of Philippine law is
explicit in EDCA.
FINALS CONSTITUTION I ACJUCO 304

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so

zealously protested by noted personalities in Philippine history
arises not so much from xenophobia, but from a genuine desire
for self-determination, nationalism, and above all a
commitment to ensure the independence of the Philippine
Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the

President of the Philippines of his Constitutional prerogatives
in respect of foreign affairs. They cannot cripple him when he
deems that additional security measures are made necessary
by the times. As it stands, the Philippines through the
Department of Foreign Affairs has filed several diplomatic
protests against the actions of the People's Republic of China
in the West Philippine Sea;462 initiated arbitration against that
country under the United Nations Convention on the Law of the
Sea;463 is in the process of negotiations with the Moro Islamic
Liberation Front for peace in Southern Philippines, 464 which is
the subject of a current case before this Court; and faces
increasing incidents of kidnappings of Filipinos and foreigners
allegedly by the Abu Sayyaf or the New People's Army.465 The
Philippine military is conducting reforms that seek to ensure
the security and safety of the nation in the years to come. 466 In
the future, the Philippines must navigate a world in which
armed forces fight with increasing sophistication in both
strategy and technology, while employing asymmetric warfare
and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the

backlash of Mother Nature. The Philippines is one of the
countries most directly affected and damaged by climate
change. It is no coincidence that the record-setting tropical
cyclone Yolanda (internationally named Haiyan), one of the
most devastating forces of nature the world has ever seen hit
the Philippines on 8 November 2013 and killed at least 6,000
people.467 This necessitated a massive rehabilitation
project.468 In the aftermath, the U.S. military was among the
first to extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands

upon thousands volunteered their help, their wealth, and their
prayers to those affected. It also brought to the fore the value
of having friends in the international community.

In order to keep the peace in its archipelago in this region of

the world, and to sustain itself at the same time against the
destructive forces of nature, the Philippines will need friends.
Who they are, and what form the friendships will take, are for
the President to decide. The only restriction is what the
Constitution itself expressly prohibits. It appears that this
overarching concern for balancing constitutional requirements
against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive

agreement, it remains consistent with existing laws and
treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 305

SUZETTE NICOLAS y SOMBILON, G.R. No. 175888 with the crime of rape committed against a Filipina, petitioner
Petitioner, herein, sometime on November 1, 2005, as follows:

Responden
ts. The undersigned accused LCpl.
Daniel Smith, Ssgt. Chad Brian Carpentier,
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Dominic Duplantis, Keith Silkwood and
Timoteo L. Soriano, Jr. of the crime of Rape
JOVITO R. SALONGA, WIGBERTO G.R. No. 176051 under Article 266-A of the Revised Penal
E. TAADA, JOSE DE LA RAMA, Code, as amended by Republic Act 8353,
EMILIO C. CAPULONG, H. HARRY upon a complaint under oath filed by
L. ROQUE, JR., FLORIN HILBAY, Suzette S. Nicolas, which is attached
and BENJAMIN POZON, hereto and made an integral part hereof as
Petitioners, Annex A, committed as follows:

- versus - That on or
about the First (1st) day
of November 2005,
DANIEL inside the Subic Bay
SMITH, Freeport Zone,
SECRETA Olongapo City and
RY RAUL within the jurisdiction of
GONZALE this Honorable Court,
Z, the above-named
PRESIDEN accuseds (sic), being
TIAL then members of the
LEGAL United States Marine
COUNSEL Corps, except Timoteo
SERGIO L. Soriano, Jr.,
APOSTOL, conspiring,
SECRETA confederating together
RY and mutually helping
RONALDO one another, with lewd
PUNO, design and by means of
SECRETA force, threat and
RY intimidation, with abuse
ALBERTO of superior strength and
ROMULO, taking advantage of the
The intoxication of the
Special victim, did then and
16th Divisi there willfully,
on of the unlawfully and
COURT OF feloniously sexually
APPEALS, abuse and have sexual
and all intercourse with or
persons carnal knowledge of
acting in one Suzette S. Nicolas,
their a 22-year old unmarried
capacity, woman inside a Starex
Respondents. Van with Plate No.
WKF-162, owned by
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Starways Travel
and Tours, with Office
BAGONG ALYANSANG MAKABAYAN G.R. No. 176222, address at 8900 P.
Respondents. Promulgated: Victor St.,
February 11, 2009 Guadalupe, Makati City
, and driven by accused
Timoteo L. Soriano, Jr.,
X --------------------------------------------------------------------------- X against the will and
DECISION consent of the said
Suzette S. Nicolas, to
AZCUNA, J.: her damage and
prejudice.
These are petitions for certiorari, etc. as special civil
actions and/or for review of the Decision of the Court of CONTRARY TO
Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin LAW.[1]
T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2,
2007.
Pursuant to the Visiting Forces Agreement (VFA)
The facts are not disputed. between the Republic of the Philippines and the United States,
entered into on February 10, 1998, the United States, at its
Respondent Lance Corporal (L/CPL) Daniel Smith is request, was granted custody of defendant Smith pending the
a member of the United States Armed Forces. He was charged proceedings.
FINALS CONSTITUTION I ACJUCO 306

During the trial, which was transferred from the accordance with the Visiting Forces
Regional Trial Court (RTC) of Zambales to the RTC of Makati Agreement signed between our two
for security reasons, the United States Government faithfully nations, Lance Corporal Daniel J. Smith,
complied with its undertaking to bring defendant Smith to the United States Marine Corps, be returned to
trial court every time his presence was required. U.S. military custody at the U.S. Embassy
in Manila.
On December 4, 2006, the RTC of Makati, following
the end of the trial, rendered its Decision, finding defendant (Sgd.) KRISTIE A.
Smith guilty, thus: KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United
WHEREFORE, premises States Representative of the Republic
considered, for failure of the prosecution to of America of the Philippines
adduce sufficient evidence against
accused S/SGT. CHAD BRIAN DATE: 12-19-06 DATE: December 19,
CARPENTER, L/CPL. KEITH SILKWOOD 2006__
AND L/CPL. DOMINIC DUPLANTIS, all of
the US Marine Corps assigned at the USS
Essex, are hereby ACQUITTED to the
crime charged. and the Romulo-Kenney Agreement of December 22,

The prosecution having 2006 which states:

presented sufficient evidence against
accused L/CPL. DANIEL J. SMITH, also of
The Department of Foreign Affairs of the
the US Marine Corps at the USS Essex,
Republic of the Philippines and the
this Court hereby finds him GUILTY
Embassy of the United States of
BEYOND REASONABLE DOUBT of the
America agree that, in accordance with the
crime of RAPE defined under Article 266-A,
Visiting Forces Agreement signed between
paragraph 1 (a) of the Revised Penal Code,
the two nations, upon transfer of Lance
as amended by R.A. 8353, and, in
Corporal Daniel J. Smith, United States
accordance with Article 266-B, first
Marine Corps, from the Makati City Jail, he
paragraph thereof, hereby sentences him
will be detained at the first floor, Rowe
to suffer the penalty of reclusion
(JUSMAG) Building, U.S. Embassy
perpetua together with the accessory
Compound in a room of approximately 10 x
penalties provided for under Article 41 of
12 square feet. He will be guarded round
the same Code.
the clock by U.S. military personnel. The
Philippine police and jail authorities, under
Pursuant to Article V, paragraph
the direct supervision of the Philippine
No. 10, of the Visiting Forces Agreement
Department of Interior and Local
entered into by the Philippines and
Government (DILG) will have access to the
the United States, accused L/CPL. DANIEL
place of detention to ensure the United
J. SMITH shall serve his sentence in the
States is in compliance with the terms of
facilities that shall, thereafter, be agreed
the VFA.
upon by appropriate Philippine and United
States authorities. Pending agreement on
such facilities, accused L/CPL. DANIEL J.
The matter was brought before the Court of Appeals
SMITH is hereby temporarily committed to
which decided on January 2, 2007, as follows:
the Makati City Jail.
WHEREFORE, all the foregoing
Accused L/CPL. DANIEL J.
considered, we resolved to DISMISS the
SMITH is further sentenced to indemnify
petition for having become moot.[3]
complainant SUZETTE S. NICOLAS in the
amount of P50,000.00 as compensatory
Hence, the present actions.
damages plus P50,000.00 as moral
damages.
The petitions were heard on oral arguments
on September 19, 2008, after which the parties submitted their
SO ORDERED.[2]
memoranda.

Petitioners contend that the Philippines should have

As a result, the Makati court ordered Smith detained
custody of defendant L/CPL Smith because, first of all, the VFA
at the Makati jail until further orders.
is void and unconstitutional.
On December 29, 2006, however, defendant Smith
This issue had been raised before, and this Court
was taken out of the Makati jail by a contingent of Philippine
resolved in favor of the constitutionality of the VFA. This was
law enforcement agents, purportedly acting under orders of the
in Bayan v. Zamora,[4] brought by Bayan, one of petitioners in
Department of the Interior and Local Government, and brought
the present cases.
to a facility for detention under the control of the United States
government, provided for under new agreements between the
Against the barriers of res judicata vis--vis Bayan,
Philippines and the United States, referred to as the Romulo-
and stare decisis vis--vis all the parties, the reversal of the
Kenney Agreement of December 19, 2006 which states:
previous ruling is sought on the ground that the issue is of
primordial importance, involving the sovereignty of the
The Government of the Republic of Republic, as well as a specific mandate of the Constitution.
the Philippines and the Government of
the United States of America agree that, in
FINALS CONSTITUTION I ACJUCO 307
The provision of the Constitution is Art. XVIII, Sec. 25
which states:
Sec. 25. After the expiration in
1991 of the Agreement between the
Philippines and the United States of
America concerning Military Bases, foreign
military bases, troops, or facilities shall not
be allowed in the Philippines except under
a treaty duly concurred in by the Senate
and, when the Congress so requires,
ratified by a majority of the votes cast by the
people in a national referendum held for
that purpose, and recognized as a treaty by
the other contracting State.
The reason for this provision lies in history and the
Philippine experience in regard to the United States military
bases in the country.
It will be recalled that under the Philippine Bill of
1902, which laid the basis for the Philippine Commonwealth
and, eventually, for the recognition of independence, the
United States agreed to cede to the Philippines all the territory
it acquired from Spain under the Treaty of Paris, plus a few
islands later added to its realm, except certain naval ports
and/or military bases and facilities, which the United States
retained for itself.
This is noteworthy, because what this means is
that Clark and Subic and the other places in
the Philippines covered by the RP-US Military Bases
Agreement of 1947 were not Philippine territory, as they were
excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over
these bases except to the extent allowed by the United
States. Furthermore, the RP-US Military Bases Agreement
was never advised for ratification by the United States Senate,
a disparity in treatment, because the Philippines regarded it as
a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over
these bases to the Philippines; and with the expiration of the
RP-US Military Bases Agreement in 1991, the territory covered
by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the
provision in question was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any
agreement allowing the presence of foreign military bases,
troops or facilities in Philippine territory shall be equally binding
on the Philippines and the foreign sovereign State
involved. The idea is to prevent a recurrence of the situation in
which the terms and conditions governing the presence of
foreign armed forces in our territory were binding upon us but
not upon the foreign State.
Applying the provision to the situation involved in
these cases, the question is whether or not the presence of US
Armed Forces in Philippine territory pursuant to the VFA is
allowed under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was
duly concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as attested and
certified by the duly authorized representative of the United
States government.
The fact that the VFA was not submitted for advice
and consent of the United States Senate does not detract from
its status as a binding international agreement or treaty
recognized by the said State. For this is a matter of
internal United States law. Notice can be taken of the
internationally known practice by the United States of
submitting to its Senate for advice and consent agreements
that are policymaking in nature, whereas those that carry out
or further implement these policymaking agreements are
merely submitted to Congress, under the provisions of the so-
called CaseZablocki Act, within sixty days from ratification. [6]
The second reason has to do with the relation
between the VFA and the RP-US Mutual Defense Treaty
of August 30, 1951. This earlier agreement was signed and
duly ratified with the concurrence of both the Philippine Senate
and the United States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN
THE REPUBLIC OF
THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed
at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and
principles of the Charter of the United
Nations and their desire to live in peace
with all peoples and all governments, and
desiring to strengthen the fabric of peace in
the Pacific area.
Recalling with mutual pride the historic
relationship which brought their two
peoples together in a common bond of
sympathy and mutual ideals to fight side-
by-side against imperialist aggression
during the last war.
Desiring to declare publicly and
formally their sense of unity and their
common determination to defend
themselves against external armed
attack, so that no potential aggressor
could be under the illusion that either of
them stands alone in the Pacific area.
Desiring further to strengthen their
present efforts for collective defense for
the preservation of peace and
security pending the development of a
more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present
instrument shall be considered or
interpreted as in any way or sense altering
or diminishing any existing agreements or
understandings between the Republic of
the Philippines and the United States of
America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set
forth in the Charter of the United Nations,
to settle any international disputes in which
they may be involved by peaceful means in
such a manner that international peace and
security and justice are not endangered
and to refrain in their international relation
FINALS CONSTITUTION I ACJUCO 308
from the threat or use of force in any
manner inconsistent with the purposes of
the United Nations.
ARTICLE II. In order more effectively to
achieve the objective of this Treaty,
the Parties separately and jointly by
self-help and mutual aid will maintain
and develop their individual and
collective capacity to resist armed
attack.
ARTICLE III. The Parties, through their
Foreign Ministers or their deputies, will
consult together from time to time
regarding the implementation of this Treaty
and whenever in the opinion of either of
them the territorial integrity, political
independence or security of either of the
Parties is threatened by external armed
attack in the Pacific.
ARTICLE IV. Each Party recognizes that
an armed attack in the Pacific area on
either of the parties would be dangerous to
its own peace and safety and declares that
it would act to meet the common dangers
in accordance with its constitutional
processes.
Any such armed attack and all measures
taken as a result thereof shall be
immediately reported to the Security
Council of the United Nations. Such
measures shall be terminated when the
Security Council has taken the measures
necessary to restore and maintain
international peace and security.
ARTICLE V. For the purpose of Article IV,
an armed attack on either of the Parties is
deemed to include an armed attack on the
metropolitan territory of either of the
Parties, or on the island territories under its
jurisdiction in the Pacific Ocean, its armed
forces, public vessels or aircraft in the
Pacific.
ARTICLE VI. This Treaty does not affect
and shall not be interpreted as affecting in
any way the rights and obligations of the
Parties under the Charter of the United
Nations or the responsibility of the United
Nations for the maintenance of
international peace and security.
ARTICLE VII. This Treaty shall be ratified
by the Republic of the Philippines and the
United Nations of America in accordance
with their respective constitutional
processes and will come into force when
instruments of ratification thereof have
been exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in
force indefinitely. Either Party may
terminate it one year after notice has been
given to the other party.
IN WITHNESS WHEREOF the
undersigned Plenipotentiaries have signed
this Treaty.
DONE in duplicate at Washington this
thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]
Clearly, therefore, joint RP-US military exercises for
the purpose of developing the capability to resist an armed
attack fall squarely under the provisions of the RP-US Mutual
Defense Treaty. The VFA, which is the instrument agreed
upon to provide for the joint RP-US military exercises, is simply
an implementing agreement to the main RP-US Military
Defense Treaty. The Preamble of the VFA states:
The Government of the United States of
America and the Government of the
Republic of the Philippines,
Reaffirming their faith in the purposes and
principles of the Charter of the United
Nations and their desire to strengthen
international and regional security in the
Pacific area;
Reaffirming their obligations under the
Mutual Defense Treaty of August 30,
1951;
Noting that from time to time elements
of the United States armed forces may
visit the Republic of the Philippines;
Considering that cooperation between
the United States and the Republic of
the Philippines promotes their common
security interests;
Recognizing the desirability of defining the
treatment of United States personnel
visiting the Republic of the Philippines;
Have agreed as follows:[9]
Accordingly, as an implementing agreement of the
RP-US Mutual Defense Treaty, it was not necessary to submit
the VFA to the US Senate for advice and consent, but merely
to the US Congress under the CaseZablocki Act within 60 days
of its ratification. It is for this reason that the US has certified
that it recognizes the VFA as a binding international
agreement, i.e., a treaty, and this substantially complies with
the requirements of Art. XVIII, Sec. 25 of our Constitution. [10]
The provision of Art. XVIII, Sec. 25 of the
Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a
presence allowed under the RP-US Mutual Defense
Treaty. Since the RP-US Mutual Defense Treaty itself has
been ratified and concurred in by both the Philippine Senate
and the US Senate, there is no violation of the Constitutional
provision resulting from such presence.
FINALS CONSTITUTION I ACJUCO 309
The VFA being a valid and binding agreement, the
parties are required as a matter of international law to abide by
its terms and provisions.
The VFA provides that in cases of offenses
committed by the members of the US Armed Forces in
the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United
States personnel over whom the
Philippines is to exercise jurisdiction shall
immediately reside with United States
military authorities, if they so request, from
the commission of the offense until
completion of all judicial
proceedings. United States military
authorities shall, upon formal notification by
the Philippine authorities and without delay,
make such personnel available to those
authorities in time for any investigative or
judicial proceedings relating to the offense
with which the person has been charged. In
extraordinary cases, the Philippine
Government shall present its position to the
United States Government regarding
custody, which the United States
Government shall take into full account. In
the event Philippine judicial proceedings
are not completed within one year,
the United States shall be relieved of any
obligations under this paragraph. The one
year period will not include the time
necessary to appeal. Also, the one year
period will not include any time during
which scheduled trial procedures are
delayed because United States authorities,
after timely notification by Philippine
authorities to arrange for the presence of
the accused, fail to do so.
Petitioners contend that these undertakings violate
another provision of the Constitution, namely, that providing for
the exclusive power of this Court to adopt rules of procedure
for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue
that to allow the transfer of custody of an accused to a foreign
power is to provide for a different rule of procedure for that
accused, which also violates the equal protection clause of the
Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the
Constitution.
The equal protection clause is not violated, because
there is a substantial basis for a different treatment of a
member of a foreign military armed forces allowed to enter our
territory and all other accused.[11]
The rule in international law is that a foreign armed
forces allowed to enter ones territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of
Forces Agreements involving foreign military units around the
world vary in terms and conditions, according to the situation
of the parties involved, and reflect their bargaining power. But
the principle remains, i.e., the receiving State can exercise
jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.[12]
As a result, the situation involved is not one in which
the power of this Court to adopt rules of procedure is curtailed
or violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of one
State do not extend or apply except to the extent agreed
upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign
armed forces.
Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long-
recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. On the
contrary, the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the
law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court
finds that there is a different treatment when it comes to
detention as against custody. The moment the accused has to
be detained, e.g., after conviction, the rule that governs is the
following provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or
detention by Philippine authorities
of United States personnel shall be carried
out in facilities agreed on by
appropriate Philippines and United
Statesauthorities. United States personnel
serving sentences in the Philippines shall
have the right to visits and material
assistance.
It is clear that the parties to the VFA recognized the
difference between custody during the trial and detention after
conviction, because they provided for a specific arrangement
to cover detention. And this specific arrangement clearly states
not only that the detention shall be carried out in facilities
agreed on by authorities of both parties, but also that the
detention shall be by Philippine authorities. Therefore, the
Romulo-Kenney Agreements of December 19 and 22, 2006,
which are agreements on the detention of the accused in
the United States Embassy, are not in accord with the VFA
itself because such detention is not by Philippine authorities.
Respondents should therefore comply with the VFA
and negotiate with representatives of the United
States towards an agreement on detention facilities under
Philippine authorities as mandated by Art. V, Sec. 10 of the
VFA.
Next, the Court addresses the recent decision of the
United States Supreme Court in Medellin v. Texas ( 552 US
___ No. 06-984, March 25, 2008), which held that treaties
entered into by the United States are not automatically part of
their domestic law unless these treaties are self-executing or
there is an implementing legislation to make them enforceable.
On February 3, 2009, the Court issued a Resolution,
thus:
G.R. No. 175888 (Suzette
Nicolas y Sombilon v. Alberto
Romulo, et al.); G.R. No. 176051
(Jovito R. Salonga, et al. v. Daniel
Smith, et al.); and G.R. No.
176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v.
FINALS CONSTITUTION I ACJUCO 310
President Gloria Macapagal-
Arroyo, et al.).
The parties, including the Solicitor General,
are required to submit within three (3) days
a Comment/Manifestation on the following
points:
1. What is the implication on the
RP-US Visiting Forces
Agreement of the recent US
Supreme Court decision in Jose
Ernesto Medellin v. Texas, dated
March 25, 2008, to the effect that
treaty stipulations that are not
self-executory can only be
enforced pursuant to legislation
to carry them into effect; and that,
while treaties may comprise
international commitments, they
are not domestic law unless
Congress has enacted
implementing statutes or the
treaty itself conveys an intention
that it be self-executory and is
ratified on these terms?
2. Whether the VFA is
enforceable in the US as
domestic law, either because it is
self-executory or because there
exists legislation to implement it.
3. Whether the RP-US Mutual
Defense Treaty of August 30,
1951 was concurred in by the US
Senate and, if so, is there proof of
the US Senate advice and
consent resolution? Peralta, J.,
no part.
After deliberation, the Court holds, on these points,
as follows:
First, the VFA is a self-executing Agreement, as that
term is defined in Medellin itself, because the parties intend its
provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a
matter of fact, the VFA has been implemented and executed,
with the US faithfully complying with its obligation to produce
L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing legislation,
namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as
it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days
from their ratification be immediately implemented. The parties
to these present cases do not question the fact that the VFA
has been registered under the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention
on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of
the Medellin decision. The Convention and the ICJ decision
are not self-executing and are not registrable under the Case-
Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was
advised and consented to by the US Senate on March 20,
1952, as reflected in the US Congressional Record,
82ndCongress, Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the
application of international law in domestic courts varies from
country to country.
As Ward N. Ferdinandusse states in his Treatise,
DIRECT APPLICATION OF INTERNATIONAL CRIMINAL
LAW IN NATIONAL COURTS, some countries require
legislation whereas others do not.
It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require the
other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the
treaty be recognized as a treaty by the other contracting
State. With that, it becomes for both parties a binding
international obligation and the enforcement of that obligation
is left to the normal recourse and processes under international
law.
Furthermore, as held by the US Supreme Court
in Weinberger v. Rossi,[13] an executive agreement is a treaty
within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United
States. Thus, the US Supreme Court in Weinberger enforced
the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the
American system:
1. Art. II, Sec. 2 treaties These are advised
and consented to by the US Senate in
accordance with Art. II, Sec. 2 of
the US Constitution.
2. ExecutiveCongressional Agreements:
These are joint agreements of the
President and Congress and need not be
submitted to the Senate.
3. Sole Executive Agreements. These are
agreements entered into by the
President. They are to be submitted to
Congress within sixty (60) days of
ratification under the provisions of the
Case-Zablocki Act, after which they are
recognized by the Congress and may be
implemented.
As regards the implementation of the RP-US Mutual
Defense Treaty, military aid or assistance has been given
under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of
its provisions.
WHEREFORE, the petitions are PARTLY
GRANTED, and the Court of Appeals Decision in CA-G.R. SP
No. 97212 dated January 2, 2007 is MODIFIED. The Visiting
Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10,
1998, is UPHELD as constitutional, but the Romulo-Kenney
Agreements of December 19 and 22, 2006
are DECLARED not in accordance with the VFA, and
respondent Secretary of Foreign Affairs is hereby ordered to
forthwith negotiate with the United States representatives for
the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA,
pending which the status quo shall be maintained until further
orders by this Court.
The Court of Appeals is hereby directed to resolve
without delay the related matters pending therein, namely, the
FINALS CONSTITUTION I ACJUCO 311

petition for contempt and the appeal of L/CPL Daniel Smith

from the judgment of conviction.

No costs.

SO ORDERED.
FINALS CONSTITUTION I ACJUCO 312

GR 162230
Romulo vs. Vinuya
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it
barred future claims such as those asserted by
plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that
bargain. And while full compensation for
plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners
and countless other survivors of the war, the
immeasurable bounty of life for themselves and
their posterity in a free society and in a more
peaceful world services the debt.[1]
for official apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with Japan is
void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,[3] sexual slavery,[4] and
torture.[5] They allege that the prohibition against these international
crimes is jus cogens norms from which no derogation is possible; as
such, in waiving the claims of Filipina comfort women and failing to
espouse their complaints against Japan, the Philippine government is
in breach of its legal obligation not to afford impunity for crimes against
humanity. Finally, petitioners assert that the Philippine governments
acceptance of the apologies made by Japan as well as funds from the
Asian Womens Fund (AWF) were contrary to international law.

Respondents Arguments
There is a broad range of vitally important areas that must be regularly
decided by the Executive Department without either challenge or Respondents maintain that all claims of the Philippines and its
interference by the Judiciary. One such area involves the delicate nationals relative to the war were dealt with in the San Francisco
arena of foreign relations. It would be strange indeed if the courts and Peace Treaty of 1951 and the bilateral Reparations Agreement of
the executive spoke with different voices in the realm of foreign policy. 1956.[6]
Precisely because of the nature of the questions presented, and the Article 14 of the Treaty of Peace[7] provides:
lapse of more than 60 years since the conduct complained of, we
make no attempt to lay down general guidelines covering other Article 14. Claims and Property
situations not involved here, and confine the opinion only to the very
questions necessary to reach a decision on this matter. a) It is recognized that Japan should pay
reparations to the Allied Powers
Factual Antecedents for the damage and suffering
caused by it during the war.
This is an original Petition for Certiorari under Rule 65 of the Nevertheless it is also
Rules of Court with an application for the issuance of a writ of recognized that the resources
preliminary mandatory injunction against the Office of the Executive of Japan are not presently
Secretary, the Secretary of the Department of Foreign Affairs (DFA), sufficient, if it is to maintain a
the Secretary of the Department of Justice (DOJ), and the Office of the viable economy, to make
Solicitor General (OSG). complete reparation for all such
damage and suffering and at
Petitioners are all members of the MALAYA LOLAS, the present time meet its other
a non-stock, non-profit organization registered with the obligations.
Securities and Exchange Commission, established for the
purpose of providing aid to the victims of rape by Japanese b) Except as otherwise
military forces in the Philippines during the Second World War. provided in the present Treaty,
the Allied Powers waive all
Petitioners narrate that during the Second World War, the reparations claims of the Allied
Japanese army attacked villages and systematically raped the women Powers, other claims of the
as part of the destruction of the village. Their communities were Allied Powers and their
bombed, houses were looted and burned, and civilians were publicly nationals arising out of any
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized actions taken by Japan and its
the women and held them in houses or cells, where they were nationals in the course of the
repeatedly raped, beaten, and abused by Japanese soldiers. As a prosecution of the war, and
result of the actions of their Japanese tormentors, the petitioners have claims of the Allied Powers for
spent their lives in misery, having endured physical injuries, pain and direct military costs of
disability, and mental and emotional suffering.[2] occupation.
Petitioners claim that since 1998, they have approached
the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials In addition, respondents argue that the apologies made
and military officers who ordered the establishment of the comfort by Japan[8] have been satisfactory, and that Japan had addressed the
women stations in the Philippines. However, officials of the Executive individual claims of the women through the atonement money paid by
Department declined to assist the petitioners, and took the position the Asian Womens Fund.
that the individual claims of the comfort women for compensation had Historical Background
already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan. The comfort women system was the tragic legacy of the Rape of
Nanking. In December 1937, Japanese military forces captured the
Issues city of Nanking in China and began a barbaric campaign of terror
known as the Rape of Nanking, which included the rapes and murders
Hence, this petition where petitioners pray for this court to of an estimated 20,000 to 80,000 Chinese women, including young
(a) declare that respondents committed grave abuse of discretion girls, pregnant mothers, and elderly women.[9]
amounting to lack or excess of discretion in refusing to espouse their
claims for the crimes against humanity and war crimes committed In reaction to international outcry over the incident, the
against them; and (b) compel the respondents to espouse their claims Japanese government sought ways to end international
condemnation[10] by establishing the comfort women system. Under
FINALS CONSTITUTION I ACJUCO 313

this system, the military could simultaneously appease soldiers' sexual investigating crimes committed by Japan against Korean women and
appetites and contain soldiers' activities within a regulated seeking reparations for former comfort women.[29] The UNHRC
environment.[11] Comfort stations would also prevent the spread of placed the issue on its agenda and appointed Radhika
venereal disease among soldiers and discourage soldiers from raping Coomaraswamy as the issue's special investigator. In 1996,
inhabitants of occupied territories.[12] Coomaraswamy issued a Report reaffirming Japan's responsibility in
forcing Korean women to act as sex slaves for the imperial army, and
Daily life as a comfort woman was unmitigated misery.[13] The made the following recommendations:
military forced victims into barracks-style stations divided into tiny
cubicles where they were forced to live, sleep, and have sex with as A. At the national level
many 30 soldiers per day.[14] The 30 minutes allotted for sexual 137. The Government of Japan should:
relations with each soldier were 30-minute increments of
unimaginable horror for the women.[15] Disease was (a) Acknowledge that the system of comfort
rampant.[16] Military doctors regularly examined the women, but these stations set up by the Japanese
checks were carried out to prevent the spread of venereal diseases; Imperial Army during the Second
little notice was taken of the frequent cigarette burns, bruises, bayonet World War was a violation of its
stabs and even broken bones inflicted on the women by soldiers. obligations under international law
and accept legal responsibility for that
Fewer than 30% of the women survived the war.[17] Their agony violation;
continued in having to suffer with the residual physical, psychological,
and emotional scars from their former lives. Some returned home and (b) Pay compensation to individual victims of
were ostracized by their families. Some committed suicide. Others, Japanese military sexual slavery
out of shame, never returned home.[18] according to principles outlined by the
Special Rapporteur of the Sub-
Efforts to Secure Reparation Commission on Prevention of
Discrimination and Protection of
The most prominent attempts to compel the Japanese Minorities on the right to restitution,
government to accept legal responsibility and pay compensatory compensation and rehabilitation for
damages for the comfort women system were through a series of victims of grave violations of human
lawsuits, discussion at the United Nations (UN), resolutions by various rights and fundamental freedoms. A
nations, and the Womens International Criminal Tribunal. The special administrative tribunal for this
Japanese government, in turn, responded through a series of public purpose should be set up with a
apologies and the creation of the AWF.[19] limited time-frame since many of the
victims are of a very advanced age;
Lawsuits
(c) Make a full disclosure of documents and
In December 1991, Kim Hak-Sun and two other survivors materials in its possession with
filed the first lawsuit in Japan by former comfort women against the regard to comfort stations and other
Japanese government. The Tokyo District Court however dismissed related activities of the Japanese
their case.[20] Other suits followed,[21] but the Japanese government Imperial Army during the Second
has, thus far, successfully caused the dismissal of every case.[22] World War;

Undoubtedly frustrated by the failure of litigation before (d) Make a public apology in writing to individual
Japanese courts, victims of the comfort women system brought their women who have come forward and
claims before the United States (US). On September 18, 2000, 15 can be substantiated as women
comfort women filed a class action lawsuit in the US District Court for victims of Japanese military sexual
the District of Columbia[23] "seeking money damages for [allegedly] slavery;
having been subjected to sexual slavery and torture before and during
World War II," in violation of "both positive and customary international (e) Raise awareness of these issues by
law." The case was filed pursuant to the Alien Tort Claims Act amending educational curricula to
(ATCA),[24] which allowed the plaintiffs to sue the Japanese reflect historical realities;
government in a US federal district court.[25] On October 4, 2001, the
district court dismissed the lawsuit due to lack of jurisdiction over (f) Identify and punish, as far as possible,
Japan, stating that [t]here is no question that this court is not the perpetrators involved in the
appropriate forum in which plaintiffs may seek to reopen x x x recruitment and institutionalization of
discussions nearly half a century later x x x [E]ven if Japan did not comfort stations during the Second
enjoy sovereign immunity, plaintiffs' claims are non-justiciable and World War.
must be dismissed.

The District of Columbia Court of Appeals affirmed the
lower court's dismissal of the case.[26] On appeal, the US Supreme
Court granted the womens petition for writ of certiorari, vacated the
judgment of the District of Columbia Court of Appeals, and remanded
the case.[27] On remand, the Court of Appeals affirmed its prior
decision, noting that much as we may feel for the plight of the
appellants, the courts of the US simply are not authorized to hear their
case.[28] The women again brought their case to the US Supreme
Court which denied their petition for writ of certiorari on February 21,
2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for
Military Sexual Slavery by Japan (KCWS), submitted a petition to the
UN Human Rights Commission (UNHRC), asking for assistance in
Gay J. McDougal, the Special Rapporteur for the UN Sub-
Commission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on June 22,
1998 entitled Contemporary Forms of Slavery: Systematic Rape,
Sexual Slavery and Slavery-like Practices During Armed Conflict. The
report included an appendix entitled An Analysis of the Legal Liability
of the Government of Japan for 'Comfort Women Stations'
established during the Second World War,[30] which contained the
following findings:
68. The present report concludes that the
Japanese Government remains liable for grave
violations of human rights and humanitarian law,
violations that amount in their totality to crimes
against humanity. The Japanese Governments
arguments to the contrary, including arguments
FINALS CONSTITUTION I ACJUCO 314
that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain
as unpersuasive today as they were when they
were first raised before the Nuremberg war
crimes tribunal more than 50 years ago. In
addition, the Japanese Governments argument
that Japan has already settled all claims from
the Second World War through peace treaties
and reparations agreements following the war
remains equally unpersuasive. This is due, in
large part, to the failure until very recently of the
Japanese Government to admit the extent of the
Japanese militarys direct involvement in the
establishment and maintenance of these rape
centres. The Japanese Governments silence
on this point during the period in which peace
and reparations agreements
between Japan and other Asian Governments
were being negotiated following the end of the
war must, as a matter of law and justice,
preclude Japan from relying today on these
peace treaties to extinguish liability in these
cases.
69. The failure to settle these claims more than
half a century after the cessation of hostilities is
a testament to the degree to which the lives of
women continue to be undervalued. Sadly, this
failure to address crimes of a sexual nature
committed on a massive scale during the
Second World War has added to the level of
impunity with which similar crimes are
committed today. The Government of Japan
has taken some steps to apologize and atone for
the rape and enslavement of over 200,000
women and girls who were brutalized in comfort
stations during the Second World
War. However, anything less than full and
unqualified acceptance by the Government of
Japan of legal liability and the consequences
that flow from such liability is wholly
inadequate. It must now fall to the Government
of Japan to take the necessary final steps to
provide adequate redress.
The UN, since then, has not taken any official action directing Japan to
provide the reparations sought.
Women's International War Crimes Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a
people's tribunal established by a number of Asian women and
human rights organizations, supported by an international coalition of
non-governmental organizations.[31] First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to adjudicate Japan's
military sexual violence, in particular the enslavement of comfort
women, to bring those responsible for it to justice, and to end the
ongoing cycle of impunity for wartime sexual violence against women.
After examining the evidence for more than a year, the
tribunal issued its verdict on December 4, 2001, finding the former
Emperor Hirohito and the State of Japan guilty of crimes against
humanity for the rape and sexual slavery of women.[32] It bears
stressing, however, that although the tribunal included prosecutors,
witnesses, and judges, its judgment was not legally binding since the
tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda
of California, along with six co-sponsor representatives, introduced
House Resolution 121 which called for Japanese action in light of the
ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007,[33] and made four
distinct demands:
[I]t is the sense of the House of Representatives
that the Government of Japan (1) should
formally acknowledge, apologize, and accept
historical responsibility in a clear and
unequivocal manner for its Imperial Armed
Forces' coercion of young women into sexual
slavery, known to the world as comfort women,
during its colonial and wartime occupation of
Asia and the Pacific Islands from the 1930s
through the duration of World War II; (2) would
help to resolve recurring questions about the
sincerity and status of prior statements if the
Prime Minister of Japan were to make such an
apology as a public statement in his official
capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and
trafficking of the comfort women for the
Japanese Imperial Army never occurred; and
(4) should educate current and future
generations about this horrible crime while
following the recommendations of the
international community with respect to the
comfort women.[34]
In December 2007, the European Parliament, the
governing body of the European Union, drafted a resolution similar to
House Resolution 121.[35] Entitled, Justice for Comfort Women, the
resolution demanded: (1) a formal acknowledgment of responsibility
by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past.
The resolution also stressed the urgency with which Japan should act
on these issues, stating: the right of individuals to claim reparations
against the government should be expressly recognized in national
law, and cases for reparations for the survivors of sexual slavery, as a
crime under international law, should be prioritized, taking into account
the age of the survivors.
The Canadian and Dutch parliaments have each followed
suit in drafting resolutions against Japan. Canada's resolution
demands the Japanese government to issue a formal apology, to
admit that its Imperial Military coerced or forced hundreds of
thousands of women into sexual slavery, and to restore references in
Japanese textbooks to its war crimes.[36] The Dutch parliament's
resolution calls for the Japanese government to uphold the 1993
declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms
Parliament also produced a report in November, 2008 entitled, "Global
Security: Japan and Korea" which concluded that Japan should
acknowledge the pain caused by the issue of comfort women in order
to ensure cooperation between Japan and Korea
Statements of Remorse made by representatives of the
Japanese government
Various officials of the Government of Japan have issued
the following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting
a study on the issue of wartime "comfort
women" since December 1991. I wish to
announce the findings as a result of that study.
As a result of the study which indicates that
comfort stations were operated in extensive
areas for long periods, it is apparent that there
existed a great number of comfort women.
Comfort stations were operated in response to
FINALS CONSTITUTION I ACJUCO 315
the request of the military authorities of the day.
The then Japanese military was, directly or
indirectly, involved in the establishment and
management of the comfort stations and the
transfer of comfort women. The recruitment of
the comfort women was conducted mainly by
private recruiters who acted in response to the
request of the military. The Government study
has revealed that in many cases they were
recruited against their own will, through coaxing
coercion, etc., and that, at times,
administrative/military personnel directly took
part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.
As to the origin of those comfort women who
were transferred to the war areas, excluding
those from Japan, those from
the Korean Peninsula accounted for a large
part. The Korean Peninsula was under
Japanese rule in those days, and their
recruitment, transfer, control, etc., were
conducted generally against their will, through
coaxing, coercion, etc.
Undeniably, this was an act, with the
involvement of the military authorities of the day,
that severely injured the honor and dignity of
many women. The Government of Japan would
like to take this opportunity once again to extend
its sincere apologies and remorse to all those,
irrespective of place of origin, who suffered
immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of
Japan, to continue to consider seriously, while
listening to the views of learned circles, how best
we can express this sentiment.
We shall face squarely the historical facts as
described above instead of evading them, and
take them to heart as lessons of history. We
hereby reiterated our firm determination never to
repeat the same mistake by forever engraving
such issues in our memories through the study
and teaching of history.
As actions have been brought to court
in Japan and interests have been shown in this
issue outside Japan, the Government of Japan
shall continue to pay full attention to this matter,
including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in
1994
On the issue of wartime comfort women, which
seriously stained the honor and dignity of many
women, I would like to take this opportunity once
again to express my profound and sincere
remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort
Women
The issue of comfort women, with the
involvement of the Japanese military authorities
at that time, was a grave affront to the honor and
dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew
my most sincere apologies and remorse to all
the women who endured immeasurable and
painful experiences and suffered incurable
physical and psychological wounds as comfort
women.
I believe that our country, painfully aware of its
moral responsibilities, with feelings of apology
and remorse, should face up squarely to its past
history and accurately convey it to future
generations.
d) The Diet (Japanese Parliament) passed resolutions in
1995 and 2005
Solemnly reflecting upon the many instances of
colonial rule and acts of aggression that
occurred in modern world history, and
recognizing that Japan carried out such acts in
the past and inflicted suffering on the people of
other countries, especially in Asia, the Members
of this House hereby express deep remorse.
(Resolution of the House of Representatives
adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet
sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by
the Kono Statement. This is our consistent
position. Further, we have been apologizing
sincerely to those who suffered immeasurable
pain and incurable psychological wounds as
comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the
same feeling. This has not changed even
slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March 11,
2007).
I am apologizing here and now. I am apologizing
as the Prime Minister and it is as stated in the
statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe
at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort
women who suffered hardships, and I have
expressed my apologies for the extremely
agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by
Prime Minister Abe to President George W.
Bush, April 3, 2007).
I have to express sympathy from the bottom of
my heart to those people who were taken as
wartime comfort women. As a human being, I
would like to express my sympathies, and also
as prime minister of Japan I need to apologize to
them. My administration has been saying all
along that we continue to stand by the Kono
Statement. We feel responsible for having
forced these women to go through that hardship
and pain as comfort women under the
circumstances at the time. (Excerpt from an
interview article "A Conversation with Shinzo
Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of
Japan, my heart goes out in sympathy to all
FINALS CONSTITUTION I ACJUCO 316
those who suffered extreme hardships as
comfort women; and I expressed my apologies
for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are
violated in many parts of the world during the
20th Century; therefore we must work to make
the 21st Century a wonderful century in which no
human rights are violated. And the Government
of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime
Minister Abe's remarks at the Joint Press
Availability after the summit meeting at Camp
David between Prime Minister Abe and
President Bush, April 27, 2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the
AWF represented the government's concrete attempt to address its
moral responsibility by offering monetary compensation to victims of
the comfort women system.[37] The purpose of the AWF was to show
atonement of the Japanese people through expressions of apology
and remorse to the former wartime comfort women, to restore their
honor, and to demonstrate Japans strong respect for women.[38]
The AWF announced three programs for former comfort women who
applied for assistance: (1) an atonement fund paying 2 million
(approximately $20,000) to each woman; (2) medical and welfare
support programs, paying 2.5-3 million ($25,000-$30,000) for each
woman; and (3) a letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of
March 2006, the AWF provided 700 million (approximately $7 million)
for these programs in South Korea, Taiwan, and the Philippines; 380
million (approximately $3.8 million) in Indonesia; and 242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed
a Memorandum of Understanding for medical and welfare support
programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and
Development.
Our Ruling
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse of
discretion in not espousing petitioners claims for official apology and
other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department
has the exclusive prerogative to determine whether to espouse
petitioners claims against Japan.
Baker v. Carr[39] remains the starting point for analysis
under the political question doctrine. There the US Supreme Court
explained that:
x x x Prominent on the surface of any case held
to involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department or a
lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of
deciding without an initial policy determination of
a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
question.
In Taada v. Cuenco,[40] we held that political questions refer "to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political
questions.[41] One such category involves questions of foreign
relations. It is well-established that "[t]he conduct of the foreign
relations of our government is committed by the Constitution to the
executive and legislative--'the political'--departments of the
government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision."[42] The
US Supreme Court has further cautioned that decisions relating to
foreign policy
are delicate, complex, and involve large
elements of prophecy. They are and should be
undertaken only by those directly responsible to
the people whose welfare they advance or
imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor
responsibility.[43]
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements.[44]However, the
question whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case,
the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question. Neither could petitioners
herein assail the said determination by the Executive
Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US
Supreme Court held that [t]he President is the sole organ of the nation
in its external relations, and its sole representative with foreign
relations.
It is quite apparent that if, in the maintenance of
our international relations, embarrassment --
perhaps serious embarrassment -- is to be
avoided and success for our aims achieved,
congressional legislation which is to be made
effective through negotiation and inquiry within
the international field must often accord to the
President a degree of discretion and freedom
from statutory restriction which would not be
admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions
which prevail in foreign countries, and especially
is this true in time of war. He has his confidential
sources of information. He has his agents in the
form of diplomatic, consular and other officials. x
xx
This ruling has been incorporated in our jurisprudence through Bayan
v.
FINALS CONSTITUTION I ACJUCO 317
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its
overreaching principle was, perhaps, best articulated in (now Chief)
Justice Punos dissent in Secretary of Justice v. Lantion:[48]
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes
with life and death significance to the nation
especially in times of war. It can only be
entrusted to that department of government
which can act on the basis of the best available
information and can decide with decisiveness. x
x x It is also the President who possesses the
most comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials regularly brief
him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive
military intelligence data.In fine, the presidential
role in foreign affairs is dominant and the
President is traditionally accorded a wider
degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions
are adjudged under less stringent standards,
lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations,
forfeiture of confidence, national
embarrassment and a plethora of other
problems with equally undesirable
consequences.
The Executive Department has determined that taking up petitioners
cause would be inimical to our countrys foreign policy interests, and
could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the Executive
Departments determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which authority to
make that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace
with Japan. And it is equally true that, since time immemorial, when
negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private
claims as their own, treating them as national
assets, and as counters, `chips', in international
bargaining. Settlement agreements have
lumped, or linked, claims deriving from private
debts with others that were intergovernmental in
origin, and concessions in regard to one
category of claims might be set off against
concessions in the other, or against larger
political considerations unrelated to debts.[49]
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying private
claims, thereby terminating any recourse under domestic law. In Ware
v. Hylton,[50] a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice
Chase wrote:
I apprehend that the treaty of peace abolishes
the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever
be revived, or brought into contest again. All
violences, injuries, or damages sustained by the
government, or people of either, during the war,
are buried in oblivion; and all those things are
implied by the very treaty of peace; and therefore
not necessary to be expressed. Hence it follows,
that the restitution of, or compensation for, British
property confiscated, or extinguished, during the
war, by any of the United States, could only be
provided for by the treaty of peace; and if there
had been no provision, respecting these
subjects, in the treaty, they could not be agitated
after the treaty, by the British government, much
less by her subjects in courts of justice.
(Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US
Supreme Court held:
Not infrequently in affairs between nations,
outstanding claims by nationals of one country
against the government of another country are
sources of friction between the two
sovereigns. United States v. Pink, 315 U.S. 203,
225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To
resolve these difficulties, nations have often
entered into agreements settling the claims of
their respective nationals. As one treatise writer
puts it, international agreements settling claims
by nationals of one state against the government
of another are established international practice
reflecting traditional international theory. L.
Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign
authority to settle the claims of its nationals
against foreign countries. x x x Under such
agreements, the President has agreed to
renounce or extinguish claims of United States
nationals against foreign governments in return
for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of
these settlements were encouraged by
the United States claimants themselves, since a
claimant's only hope of obtaining any payment
at all might lie in having his Government
negotiate a diplomatic settlement on his behalf.
But it is also undisputed that the United States
has sometimes disposed of the claims of its
citizens without their consent, or even without
consultation with them, usually without exclusive
regard for their interests, as distinguished from
those of the nation as a whole. Henkin, supra, at
262-263. Accord, Restatement (Second) of
Foreign Relations Law of the United States 213
(1965) (President may waive or settle a claim
against a foreign state x x x [even] without the
consent of the [injured] national). It is clear that
the practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace
Treaty with Japan not necessarily for the complete atonement of the
suffering caused by Japanese aggression during the war, not for the
payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which
occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free
world.
This was also the finding in a similar case involving American victims
of Japanese slave labor during the war.[52] In a consolidated case in
the Northern District of California,[53] the court dismissed the lawsuits
filed, relying on the 1951 peace treaty with Japan,[54] because of the
following policy considerations:
The official record of treaty negotiations
establishes that a fundamental goal of the
agreement was to settle the reparations issue
FINALS CONSTITUTION I ACJUCO 318
once and for all. As the statement of the
chief United States negotiator, John Foster
Dulles, makes clear, it was well understood
that leaving open the possibility of future
claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the
most controversial aspect
of peacemaking. The
present peace is no
exception.
On the one hand, there
are claims both vast and
just. Japan's aggression
caused tremendous cost,
losses and suffering.
On the other hand, to meet
these claims, there stands
a Japan presently
reduced to four home
islands which are unable
to produce the food its
people need to live, or the
raw materials they need to
work. x x x
The policy of the United States that Japanese
liability for reparations should be sharply limited
was informed by the experience of six years of
United States-led occupation of Japan. During
the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General
Douglas MacArthur, confiscated Japanese
assets in conjunction with the task of managing
the economic affairs of the vanquished nation
and with a view to reparations payments. It
soon became clear that Japan's financial
condition would render any aggressive
reparations plan an exercise in futility.
Meanwhile, the importance of a stable,
democratic Japan as a bulwark to
communism in the region increased. At the
end of 1948, MacArthur expressed the view that
[t]he use of reparations as a weapon to retard
the reconstruction of a viable economy in Japan
should be combated with all possible means
and recommended that the reparations issue be
settled finally and without delay.
That this policy was embodied in the treaty is
clear not only from the negotiations history but
also from the Senate Foreign Relations
Committee report recommending approval of
the treaty by the Senate. The committee noted,
for example:
Obviously insistence upon
the payment of
reparations in any
proportion commensurate
with the claims of the
injured countries and their
nationals would
wreck Japan's economy,
dissipate any credit that it
may possess at present,
destroy the initiative of its
people, and create misery
and chaos in which the
seeds of discontent and
communism would
flourish. In short, [it] would
be contrary to the basic
purposes and policy of x x
x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will
not lie. As a general principle and particularly here, where such an
extraordinary length of time has lapsed between the treatys
conclusion and our consideration the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a
claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if
apologies are sufficient, and whether further steps are appropriate or
necessary.
The Philippines is not under any international obligation to
espouse petitioners claims.
In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has
been when the individual is able to persuade a government to bring a
claim on the individuals behalf.[55] Even then, it is not the individuals
rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in the
dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and
by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the
person of its subjects, respect for the rules of
international law. The question, therefore,
whether the present dispute originates in an
injury to a private interest, which in point of fact is
the case in many international disputes, is
irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the
latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the
State, reliance on the right is within the absolute discretion of states,
and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the
particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the
limits prescribed by international law, a State
may exercise diplomatic protection by
whatever means and to whatever extent it
thinks fit, for it is its own right that the State
is asserting. Should the natural or legal
person on whose behalf it is acting consider
that their rights are not adequately
protected, they have no remedy in
international law. All they can do is resort to
national law, if means are available, with a view
to furthering their cause or obtaining redress.
The municipal legislator may lay upon the State
an obligation to protect its citizens abroad, and
may also confer upon the national a right to
demand the performance of that obligation, and
clothe the right with corresponding sanctions.
However, all these questions remain within the
province of municipal law and do not affect the
position internationally.[58] (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and when will it
cease. It retains, in this respect, a discretionary power the exercise of
FINALS CONSTITUTION I ACJUCO 319
which may be determined by considerations of a political or other
nature, unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on
Diplomatic Protection fully support this traditional view. They (i) state
that "the right of diplomatic protection belongs to or vests in the
State,[59] (ii) affirm its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State;[60] and (iii) stress
that the state "has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State
has a duty to protect its nationals and act on his/her behalf when rights
are injured.[62] However, at present, there is no sufficient evidence to
establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad.[63] Though,
perhaps desirable, neither state practice nor opinio juris has evolved
in such a direction. If it is a duty internationally, it is only a moral and
not a legal duty, and there is no means of enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence
are morally reprehensible as well as legally prohibited under
contemporary international law.[65] However, petitioners take quite a
theoretical leap in claiming that these proscriptions automatically imply
that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but seek to
recover monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive by the
Security Council, there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely because of states
reluctance to directly prosecute claims against another state,
recent developments support the modern trend to empower
individuals to directly participate in suits against perpetrators of
international crimes.[66]Nonetheless, notwithstanding an array of
General Assembly resolutions calling for the prosecution of crimes
against humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present existence
of an obligation to prosecute international crimes.[67] Of course a
customary duty of prosecution is ideal, but we cannot find enough
evidence to reasonably assert its existence. To the extent that any
state practice in this area is widespread, it is in the practice of granting
amnesties, immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations
will not alter this analysis. Even if we sidestep the question of
whether jus cogens norms existed in 1951, petitioners have not
deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status of jus
cogens.
The term erga omnes (Latin: in relation to everyone) in international
law has been used as a legal term describing obligations owed by
States towards the community of states as a whole. The concept was
recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis--vis another State in the field of
diplomatic protection. By their very nature, the
former are the concern of all States. In view of
the importance of the rights involved, all States
can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in
contemporary international law, from the
outlawing of acts of aggression, and of
genocide, as also from the principles and rules
concerning the basic rights of the human
person, including protection from slavery and
racial discrimination. Some of the corresponding
rights of protection have entered into the body of
general international law others are conferred by
international instruments of a universal or quasi-
universal character.
The Latin phrase, erga omnes, has since become one of the rallying
cries of those sharing a belief in the emergence of a value-based
international public order. However, as is so often the case, the reality
is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to
be realized in practice.[69]
The term is closely connected with the international law concept of jus
cogens. In international law, the term jus cogens (literally, compelling
law) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms
of equivalent authority.[70]
Early strains of the jus cogens doctrine have existed since the
1700s,[71] but peremptory norms began to attract greater scholarly
attention with the publication of Alfred von Verdross's influential 1937
article, Forbidden Treaties in International Law.[72] The recognition
of jus cogens gained even more force in the 1950s and 1960s with the
ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).[73] Though there was a consensus that certain international
norms had attained the status of jus cogens,[74] the ILC was unable to
reach a consensus on the proper criteria for identifying peremptory
norms.
After an extended debate over these and other theories of jus cogens,
the ILC concluded ruefully in 1963 that there is not as yet any generally
accepted criterion by which to identify a general rule of international
law as having the character of jus cogens.[75] In a commentary
accompanying the draft convention, the ILC indicated that the prudent
course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international
tribunals.[76] Thus, while the existence of jus cogens in international
law is undisputed, no consensus exists on its substance,[77] beyond a
tiny core of principles and rules.[78]
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the unimaginable
horror they underwent at the hands of the Japanese soldiers. We are
also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to
challenge those that have offended them before appropriate
fora. Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only the power
to urge and exhort the Executive Department to take up petitioners
cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
FINALS CONSTITUTION I ACJUCO 320
G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE
COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals
reversing a decision of the Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of
several shipments of onion and garlic which arrived at the Port
of Manila from August 25 to September 7, 1954. Some
shipments came from Japan and others from Hong Kong. In as
much as none of the shipments had the certificate required by
Central Bank Circulars Nos. 44 and 45 for the release thereof,
the goods thus imported were seized and subjected to
forfeiture proceedings for alleged violations of section 1363(f)
of the Revised Administrative Code, in relation to the
aforementioned circulars of the Central Bank. In due course,
the Collector of Customs of Manila rendered a decision on
September 4, 1956, declaring said goods forfeited to the
Government and — the goods having been, in the meantime,
released to the consignees on surety bonds, filed by the same,
as principal, and the Alto Surety & Insurance Co., Inc., as
surety, in compliance with orders of the Court of First Instance
of Manila, in Civil Cases Nos. 23942 and 23852 thereof —
directing that the amounts of said bonds be paid, by said
principal and surety, jointly and severally, to the Bureau of
Customs, within thirty (30) days from notice.
On appeal taken by the consignee, said decision was affirmed
by the Commissioner of Customs on December 27, 1956.
Subsequently, the consignee sought a review of the decision
of said two (2) officers by the Court of Tax Appeals, which
reversed the decision of the Commissioner of Customs and
ordered that the aforementioned bonds be cancelled and
withdrawn. Hence, the present petition of the Commissioner of
Customs for review of the decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that
the Central Bank has no authority to regulate transactions not
involving foreign exchange; that the shipments in question are
in the nature of "no-dollar" imports; that, as such, the
aforementioned shipments do not involve foreign exchange;
that, insofar as a Central Bank license and a certificate
authorizing the importation or release of the goods under
consideration are required by Central Bank Circulars Nos. 44
and 45, the latter are null and void; and that the seizure and
forfeiture of the goods imported from Japan cannot be justified
under Executive Order No. 328,1 not only because the same
seeks to implement an executive agreement2 — extending the
effectivity of our3 Trades and Financial Agreements4 with
Japan — which (executive agreement), it believed, is of
dubious validity, but, also, because there is no governmental
agency authorized to issue the import license required by the
aforementioned executive order.
The authority of the Central Bank to regulate no-dollar imports
and the validity of the aforementioned Circulars Nos. 44, and
45 have already been passed upon and repeatedly upheld by
this Court (Pascual vs. Commissioner of Customs, L-10979
[June 30, 1959]; Acting Commissioner of Customs vs.
Leuterio, L-9142 [October 17, 1959] Commissioner of Customs
vs. Pascual, L-9836 [November 18, 1959]; Commissioner of
Customs vs. Serree Investment Co., L-12007 [May 16, 1960];
Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of
the Central Bank, under its charter, to maintain our monetary
stability and to preserve the international value of our currency,
under section 2 of Republic Act No. 265, in relation to section
14 of said Act — authorizing the bank to issue such rules and
regulations as it may consider necessary for the effective
discharge of the responsibilities and the exercise of the powers
assigned to the Monetary Board and to the Central Bank —
connote the authority to regulate no-dollar imports, owing to
the influence and effect that the same may and do have upon
the stability of our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of
the executive agreement sought to be implemented by
Executive Order No. 328, owing to the fact that our Senate had
not concurred in the making of said executive agreement. The
concurrence of said House of Congress is required by our
fundamental law in the making of "treaties" (Constitution of the
Philippines, Article VII, Section 10[7]), which are, however,
distinct and different from "executive agreements," which may
be validly entered into without such concurrence.
Treaties are formal documents which require
ratification with the approval of two thirds of the
Senate. Executive agreements become binding
through executive action without the need of a vote
by the Senate or by Congress.
xxx xxx xxx
. . . the right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such
subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation
arrangements and the settlement of claims. The
validity of these has never been seriously questioned
by our courts.
xxx xxx xxx
Agreements with respect to the registration of trade-
marks have been concluded by the Executive with
various countries under the Act of Congress of March
3, 1881 (21 Stat. 502). Postal conventions regulating
the reciprocal treatment of mail matters, money
orders, parcel post, etc., have been concluded by the
Postmaster General with various countries under
authorization by Congress beginning with the Act of
February 20, 1792 (1 Stat. 232, 239). Ten executive
agreements were concluded by the President
pursuant to the McKinley Tariff Act of 1890 (26 Stat.
567, 612), and nine such agreements were entered
into under the Dingley Tariff Act 1897 (30 Stat. 151,
203, 214). A very much larger number of
agreements, along the lines of the one with Rumania
previously referred to, providing for most-favored-
nation treatment in customs and related matters have
been entered into since the passage of the Tariff Act
of 1922, not by direction of the Act but in harmony
with it.
xxx xxx xxx
FINALS CONSTITUTION I ACJUCO 321

International agreements involving political issues or
changes of national policy and those involving
international arrangements of a permanent character
usually take the form of treaties. But international
agreements embodying adjustments of
detail carrying out well-established national policies
and traditions and those involving arrangements of a
more or less temporary nature usually take the form
of executive agreements.
xxx xxx xxx
Furthermore, the United States Supreme Court has
expressly recognized the validity and constitutionality
of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754)
(See, also, U.S. vs. Curtis-Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink,
315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F.
2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [Revised Edition], Vol. 2, pp.
1405, 1416-1418; Willoughby on the U.S.
Constitutional Law, Vol. I [2d ed.], pp. 537-540;
Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-
407). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High
Commissioner to the Philippines, said in his work on "The
Constitutionality of Trade Agreement Acts":
The validity of the executive agreement in question is thus
patent. In fact, the so-called Parity Rights provided for in the
Ordinance Appended to our Constitution were, prior thereto,
the subject of an executive agreement, made without the
concurrence of two-thirds (2/3) of the Senate of the United
States.
Lastly, the lower court held that it would be unreasonable to
require from respondent-appellee an import license when the
Import Control Commission was no longer in existence and,
hence, there was, said court believed, no agency authorized to
issue the aforementioned license. This conclusion is
untenable, for the authority to issue the aforementioned
licenses was not vested exclusively upon the Import Control
Commission or Administration. Executive Order No. 328
provided for export or import licenses "from the Central Bank
of the Philippines or the Import Control Administration" or
Commission. Indeed, the latter was created only to perform the
task of implementing certain objectives of the Monetary Board
and the Central Bank, which otherwise had to be undertaken
by these two (2) agencies. Upon the abolition of said
Commission, the duty to provide means and ways for the
accomplishment of said objectives had merely to be
discharged directly by the Monetary Board and the Central
Bank, even if the aforementioned Executive Order had been
silent thereon.
WHEREFORE, the decision appealed from is hereby reversed
and another one shall be entered affirming that of the
Commissioner of Customs, with cost against respondents
defendant-appellee, Eastern Sea Trading. It is so ordered.

Agreements concluded by the President which fall

short of treaties are commonly referred to as
executive agreements and are no less common in
our scheme of government than are the more formal
instruments — treaties and conventions. They
sometimes take the form of exchanges of notes and
at other times that of more formal documents
denominated "agreements" time or "protocols". The
point where ordinary correspondence between this
and other governments ends and agreements —
whether denominated executive agreements or
exchanges of notes or otherwise — begin, may
sometimes be difficult of ready ascertainment. It
would be useless to undertake to discuss here the
large variety of executive agreements as such,
concluded from time to time. Hundreds of executive
agreements, other than those entered into under the
trade-agreements act, have been negotiated with
foreign governments. . . . It would seem to be
sufficient, in order to show that the trade agreements
under the act of 1934 are not anomalous in
character, that they are not treaties, and that they
have abundant precedent in our history, to refer to
certain classes of agreements heretofore entered
into by the Executive without the approval of the
Senate. They cover such subjects as the inspection
of vessels, navigation dues, income tax on shipping
profits, the admission of civil aircraft, customs
matters, and commercial relations generally,
international claims, postal matters, the registration
of trademarks and copyrights, etcetera. Some of
them were concluded not by specific congressional
authorization but in conformity with policies declared
in acts of Congress with respect to the general
subject matter, such as tariff acts; while still others,
particularly those with respect of the settlement of
claims against foreign governments, were concluded
independently of any legislation." (39 Columbia Law
Review, pp. 651, 755.)
FINALS CONSTITUTION I ACJUCO 322
G.R. No. L-23846 September 9, 1977
GO TEK petitioner-appelle,
vs.
DEPORTATION BOARD, respondent-appellant.
Teodoro C. Ronquillo for appelle.
Solicitor-General Arturo A. Alafriz, Assistant Solicitor general
Felicisimo R. Rosete and Solicitor Octavio R. Ramirez for
appellant.
AQUINO, J.:
This is a deportation case. On March 3, 1964 the chief
prosecutor of the Deportation Board filed a complaint against
Go Tek a Chinaman residing at Ilagan, Isabela and 1208-B,
Misericordia Street, Sta. Cruz Manila.
It was alleged in the complaint that in December, 1963 certain
agents of the National Bureau of Investigation (NBI) searched
an office located at 1439 O'Donnel Street, Sta. Cruz, Manila
believed to be the headquarters of a guerilla unit of the
"Emergency Intelligence Section, Army of the United States"
and that among those arrested thereat was Go Tek an alleged
sector commander and intelligence and record officer of that
guerilla unit.
It was further alleged that fake dollar checks were found in Go
Tek's possession and that, therefore, he had violated article
168 of the Revised Penal Code and rendered himself an
undesirable alien.
The prosecutor prayed that after trial the Board should
recommend to the President of the Philippines the . immediate
deportation of Go Tek as an undesirable alien, "his presence
in this country having been, and will always be and a menace
to the peace , welfare, and security of the community". Case
No. R1116).
Go Tek filed a motion to dismiss on the ground that the
complaint was premature bemuse them was a pending case
against him in the city fiscal's office of Manila for violation of
article 168 (IS 64-7267). He contended that the board had no
jurisdiction to try the case in view of the obiter dictum in Qua
Chee Gan vs. Deportation Board, 118 Phil. 868, 875, that the t
may deport aliens only on the grounds specified in the law.
The Board, composed of Manuel A. Concordia, Arturo A.
Alafriz and Manuel V. Reyes, in its resolution of April 21, 1964
denied Go Teks motion. The Board reasoned out that a
conviction is not a prerequisite before the State my exercise its
rights to deport an undesirable alien and that the Board is only
a fact finding body whose function is to make a report and
recommendation to the President in whom is lodged the
exclusive power to deport an alien or a deportation proceeding.
In view of the denial of his motion to quash, Go Tek on June
10, 1964 filed in the Court of First Instance of Manila a
prohibition action against the Board. On July 8, 1964 the court
issued a writ of preliminary injunction restraining the board
from hearing Go Tek's case.
After hearing, the trial court (Judge Federico C. Alikpala
presiding) in its decision of 31, 1964 granted the writ prohibition
and the Board to desist from taking cognizance of the Go Tek.
The court, citing the said obiter dictum in the Qua Chee Gan
case, held that mere ion of forged dollar checks is not a ground
for deportation under the Immigration Law; that under section
37(3) of the law before an alien may be deported for having
been convicted and sentenced to imprisonment for a term of
one year or more for a crime involving moral turpitude a
conviction is and that since Go Tek had not been convicted of
the offense punished in article 168, the deportation was
premature.
The Board appealed to this Court on the ground that the
decision is contrary to law. The Solicitor General contends that
the trial court erred in assuming that the President may deport
undesirable aliens only to grounds enumerated by law; in
holding that mere possession of forged dollar checks is not a
ground for deportation and that a criminal conviction is
necessary, and in not finding that the Board has jurisdiction
over Go Tek's case.
The parties stipulated that the Deportation Board is an of the
President of the Philippines charged with the investigation of
undesirable aliens and to report and recommend proper action
on the basis of its findings therein."
The issue is whether the Deportation Board can entertain a
deportation proceeding based on a ground which is not
specified in section 37 of the Immigration Law and although the
aliens has not yet been convicted of the offense imputed to
him.
We hold that the Board has jurisdiction to investigate Go Tek
for illegal possession of fake dollar checks (as well as his
alleged "guerilla" activities) in spite of the fact that he has not
yet been convicted of illegal possession thereof under article
168 of the Revised Penal Code and notwithstanding that act is
not the grounds for the deportation of undesirable aliens as
enumerated in section 37 of the Immigration Law. The charge
against Go Tek before- the Board was not premature.
The aforementioned obiter dictum the Qua Chee Gan case
invoked by Go Tek and relied upon by the trial court, is not of
this case. In the Qua Chee Gan case the aliens were with
economic sabotage which is a ground for deportation under
Republic Act No. 503.
The ratio decidendi of the Qua Chee Gan case is that the
provision of Executive Order No. 398, of 1951, the Deportation
Board to issue a warrant of arrest upon the filing of formal
charges against an alien, is "illegal" or unconstitutional
because it is contrary to the provinsion in section 1(3), Article
III of the 1935 Constitution that warrants shall issue upon to be
de by the judge after e under oath the t and the witness he may
produce. (Note that under section 3, Article IV of the 1973
Constitution cause may be determined "by the judge, or such
other responsible officer as may be authorized by law". See
Santos vs. Commissioner of Immigration L-25694, November
29, 1976, 74 SCRA 96, per Fernando, J.)
A thorough comprehension of the President's power to deport
aliens may show the baselessness of the instant prohibition
action of Go Tek The President's power to deport aliens and
the investigation of aliens subject to deportation are provided
for in the following provisions of the Revised Administrative
Code:
SEC. 69. Deportation of subject of foreign
power. — A subject of a foreign power
residing in the Philippine Islands shall not
be deported expelled, or excluded from
said Islands or repatriated to his own
FINALS CONSTITUTION I ACJUCO 323

country by the Governor-General except
upon prior investigator, conducted by said
Executive or his authorized agent, of the
ground upon which such action is
contemplated. In such case the person
concerned shall he informed of the charge
or charges against him and he shall be
allowed not less than three days for the
preparation of his defense. He shall also
have the right to be heard by himself or
counsel, to produce witnesses in his own
behalf, and to cross-examine the opposing
witnesses.
On the other hand, section 37 of the Immigration Law Provides
that certain aliens may be arrested upon the warrant of the
Commissioner of Immigration or of any other officer designated
by him for the purpose and deported upon the Commissioner's
warrant - "after a determination by the Board of Commissioners
of the existence of the ground for deportation as charged
against the alien." Thirteen classes of aliens who may be
deported by the Commissioner are specified in section 37 (See
Po Siok Pin vs. Vivo, L-24792, February 14, 1975, 62 SCRA
363, 368).
So, under existing law; the deportation of an undesirable alien
may be effected (1) by order of the President, after due
investigation, pursuant to section 69 of the Revised
Administrative Code and (2) by the Commissioner of
Immigration upon recommendation of the Board of
Commissioners under section 37 of the immigration Law (Qua
Chee Gan vs- Deportation Board, supra).
The State has the inherent power to deport undesirable aliens
(Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40
Phil. 1122, 1125). That power may be exercise by the Chief
Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation Justice Johnson's
is that there the Chief Executive rinds that there are aliens
whose continued in the country is injurious to the public interest
he may, even in the absence of express law, deport them
(Forbes vs. Chuoco Tiaco and Crossfield 16 Phil. 534, 568,
569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport
aliens because their continued presence is
rental to public welfare is absolute and
unqualified (Tiu Chun Hai and Go Tam vs.
Commissioner of Immigration and the
Director of NBI, 104 Phil. 949, 956).
country is so undesirable as to affect or injure the security
welfare or interest of the state. The adjudication of facts upon
which deportation is predicated also devolves on the Chief
Executive whose decision is final and executory." (Tan Tong
vs. Deportation Board 96 Phil. 934, 936; Tan Sin vs.
Deportation Board, 104 PhiL 868, 872).
It has been held that the Chief Executive is the sole and
exclusive judge of the existence of facts which warrant the
deportation of aliens as disclosed in an investigation
conducted in accordance with 69. No other tribunal is at liberty
to reexamine or to controvert the sufficiency of the evidence on
which he acted. (Martin vs. Mott 12 Wheat., 19, 31, cited in In
re McCulloch Dick, 38 Phil. 41, 62).
In the Dick case it was noted "that every alien forfeits his right
to asylum in the country in which he resides, in the absence of
treaty provisions to the contrary when his conduct or his mode
of life renders his prance there inimical to the public interests".
"The reasons may be summed up and co in a single word: the
public interest of the State ." (38 Phil. 41, 47, 100).
"It is fundamental that an executive order for deportation is not
dependent on a prior judicial conviction in a case" (Ang Bong
vs. Commissioner of Immigration, 100 Phil. 801, 803). Thus, it
was held that the fact that an alien has been acquitted in a of
the charge does not prevent the deportation of such alien
based on the same charge. Such acquittal does not
constitute res judicata in the deportation proceedings.
Conviction of a crime is not n to warrant deportation. (3 C.J.S.
743, note 40, citing Lewis vs. Frick, 233 U.S. 291, 58 L. Ed.
967 and U.S. ex.. Mastoras vs. McCandless 61 F. 2nd 366;
Tama Miyake vs. U.S. 257 F. 732).
And in the Tan Tong case, supra, it was ruled that the
Deportation Board could take cognizance of the charge of
illegal importation against an alien as a ground for deportation,
even if he of the Deportation Board is merely recommendatory.
The Chief Executive has to approve the board's
recommendatory Abuses or rents committed by the prosecutor
or by the Board should first be brought to his attention.
WHEREFORE, the lower court's decision is reversed and set
aside. The writ of preliminary injunction is dissolved. The case
is to the Deportation Board for further proceedings. Costs
against the petitioner-appellee.
SO ORDERED.

The Deportation Board is composed of the Undersecretary of

Justice as chairman , the solicitor General, and a
representative of the Secretary of National Defense (Executive
Order No. 455 dated June 25, 1951, 47 O.G. 28M).

SECTION 69 and Executive Order No. 398, the Deportation

Board, do not specify the grounds for deportation Paragraph
l(a) of Executive Order No. 398 merely provides that "the
Deportation Board, motu proprio or upon complaint of any
person is authorized to conduct investigations in the manner
prescribed in section 69 of the Revised Administrative Code to
determine whether a subject of a foreign power in the
Philippines is an undesirable alien or not, and thereafter to
recommend to the President of the Philippines the deportation
of such alien."

As observed by Justice Labrador, there is no legal nor

constitutes provision defining the power to deport aliens
because the intention of the law is to grant the Chief Executive
"full discretion to determine whether an alien's residence in the
FINALS CONSTITUTION I ACJUCO 324

G.R. No. 82585 November 14, 1988 affirmed the resolution of the Secretary of Justice on May 2,
1988. The motion for reconsideration was denied by the
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK Executive Secretary on May 16, 1988. With these
developments, petitioners' contention that they have been
K. AGCAOLI, and GODOFREDO L.
MANZANAS, petitioners, denied the administrative remedies available under the law has
vs. lost factual support.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the
Regional Trial Court of Manila, Branch 35, It may also be added that with respect to petitioner Beltran, the
UNDERSECRETARY SILVESTRE BELLO III, of the allegation of denial of due process of law in the preliminary
Department of Justice, LUIS C. VICTOR, THE CITY FISCAL investigation is negated by the fact that instead of submitting
OF MANILA and PRESIDENT CORAZON C. his counter- affidavits, he filed a "Motion to Declare
AQUINO, respondents. Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does
G.R. No. 82827 November 14, 1988 not require that the respondent in a criminal case actually file
his counter-affidavits before the preliminary investigation is
deemed completed. All that is required is that the respondent
LUIS D. BELTRAN, petitioner, be given the opportunity to submit counter-affidavits if he is so
vs. minded.
THE HON. RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, THE HON.
LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE The second issue, raised by petitioner Beltran, calls for an
interpretation of the constitutional provision on the issuance of
PHILIPPINES, SUPERINTENDENT OF THE WESTERN
POLICE DISTRICT, and THE MEMBERS OF THE PROCESS warrants of arrest. The pertinent provision reads:
SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents. Art. III, Sec. 2. The right of the people to be
secure in their persons, houses, papers
G.R. No. 83979 November 14, 1988. and effects against unreasonable searches
and seizures of whatever nature and for
any purpose shall be inviolable, and no
LUIS D. BELTRAN, petitioner, search warrant or warrant of arrest shall
vs. issue except upon probable cause to be
EXECUTIVE SECRETARY CATALINO MACARAIG, determined personally by the judge after
SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, examination nder oath or affirmation of the
UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, complainant and the witnesses he may
THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and produce, and particularly describing the
JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch place to be searched and the persons or
35 of the Regional Trial Court, at Manila, respondents. things to be seized.

Angara, Abello, Concepcion, Regala and Cruz for petitioners
in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P.
Fernandez for petitioner in G.R. Nos. 82827 and 83979.
RESOLUTION
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires
the judge to personally examine the complainant and his
witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and

PER CURIAM:
In these consolidated cases, three principal issues were
raised: (1) whether or not petitioners were denied due process
when informations for libel were filed against them although the
finding of the existence of a prima faciecase was still under
review by the Secretary of Justice and, subsequently, by the
President; (2) whether or not the constitutional rights of Beltran
were violated when respondent RTC judge issued a warrant
for his arrest without personally examining the complainant
and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the
Constitution, may initiate criminal proceedings against the
petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and
academic. On March 30, 1988, the Secretary of Justice denied
petitioners' motion for reconsideration and upheld the
resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A
second motion for reconsideration filed by petitioner Beltran
was denied by the Secretary of Justice on April 7, 1988. On
appeal, the President, through the Executive Secretary,
personal responsibility of the issuing judge to satisfy himself of
the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and
the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would
be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted
Circular No. 12, setting down guidelines for the issuance of
warrants of arrest. The procedure therein provided is reiterated
and clarified in this resolution.
FINALS CONSTITUTION I ACJUCO 325
It has not been shown that respondent judge has deviated from
the prescribed procedure. Thus, with regard to the issuance of
the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the
reasons which necessitate presidential immunity from suit
impose a correlative disability to file suit." He contends that if
criminal proceedings ensue by virtue of the President's filing of
her complaint-affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way
defeat her privilege of immunity from suit, as by testifying on
the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential
duties and functions free from any hindrance or distraction,
considering that being the Chief Executive of the Government
is a job that, aside from requiring all of the office holder's time,
also demands undivided attention.
But this privilege of immunity from suit, pertains to the
President by virtue of the office and may be invoked only by
the holder of the office; not by any other person in the
President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the
presidential privilege as a defense to prevent the case from
proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the
President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege
and submit to the court's jurisdiction. The choice of whether to
exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and
imposed by any other person.
As regards the contention of petitioner Beltran that he could
not be held liable for libel because of the privileged character
or the publication, the Court reiterates that it is not a trier of
facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to
proceed would produce a "chilling effect" on press freedom,
the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through
their separate acts, gravely abused their discretion as to
amount to lack of jurisdiction. Hence, the writs of certiorari and
prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting
to excess or lack of jurisdiction on the part of the public
respondents, the Court Resolved to DISMISS the petitions in
G. R. Nos. 82585, 82827 and 83979. The Order to maintain
the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated
April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras,
Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three
principal issues mentioned in its opening statement. However,
as to the more important issue on whether or not the
prosecution of the libel case would produce a "chilling effect"
on press freedom, I beg to reserve my vote. I believe this is the
more important issue in these petitions and it should be
resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134
SCRA 438 [1985]), the Court should not hesitate to quash a
criminal prosecution in the interest of more enlightened and
substantial justice where it is not alone the criminal liability of
an accused in a seemingly minor libel case which is involved
but broader considerations of governmental power versus a
preferred freedom.
We have in these four petitions the unusual situation where the
highest official of the Republic and one who enjoys
unprecedented public support asks for the prosecution of a
newspaper columnist, the publisher and chairman of the
editorial board, the managing editor and the business manager
in a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will
be limited to punishing a newspaperman who, instead of
observing accuracy and fairness, engages in unwarranted
personal attacks, irresponsible twisting of facts, of malicious
distortions of half-truths which tend to cause dishonor,
discredit, or contempt of the complainant. However, this case
is not a simple prosecution for libel. We have as complainant a
powerful and popular President who heads the investigation
and prosecution service and appoints members of appellate
courts but who feels so terribly maligned that she has taken the
unorthodox step of going to court inspite of the invocations of
freedom of the press which would inevitably follow.
I believe that this Court should have acted on this issue now
instead of leaving the matter to fiscals and defense lawyers to
argue before a trial judge.
There is always bound to be harassment inherent in any
criminal prosecution. Where the harassment goes beyond the
usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to
question government handling of sensitive issues and public
affairs, this Court and not a lower tribunal should draw the
demarcation line.
As early as March 8, 1918, the decision in United States v.
Bustos (37 Phil. 731) stated that "(c)omplete liberty to
comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the
abscesses of officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be assuaged with
the balm of a clear conscience." The Court pointed out that
while defamation is not authorized, criticism is to be expected
and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the
Crown own or a person in authority of such
exalted position that the citizen must speak
FINALS CONSTITUTION I ACJUCO 326
of him only with bated breath. "In the eye of
our Constitution and laws, every man is a
sovereign, a ruler and a freeman, and has
equal rights with every other man." (at p.
900)
In fact, the Court observed that high official position, instead of
affording immunity from slanderous and libelous charges,
would actually invite attacks by those who desire to create
sensation. It would seem that what would ordinarily be slander
if directed at the typical person should be examined from
various perspectives if directed at a high government official.
Again, the Supreme Court should draw this fine line instead of
leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v.
Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel
lacks justification if the offending words find sanctuary within
the shelter of the free press guaranty. In other words, a
prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really
that libelous, there is likely to be a chilling effect, a patently
inhibiting factor on the willingness of newspapermen,
especially editors and publishers to courageously perform their
critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors
tell their people to lay off certain issues or certain officials, the
effect on a free press would be highly injurious.
Because many questions regarding press freedom are left
unanswered by our resolution, I must call attention to our
decisions which caution that "no inroads on press freedom
should be allowed in the guise of punitive action visited on what
otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in
Elizalde v. Gutierrez, supra).
The United States Supreme Court is even more emphatic, to
wit:
In deciding the question now, we are
compelled by neither precedent nor policy
to give any more weight to the epithet "libel"
than we have to other "mere labels" of state
law. N. A. A. C. P. v. Button, 371 US 415,
429, 9L ed 2d 405, 415, 83 S Ct 328. Like
insurrection, contempt, advocacy of
unlawful acts, breach of the peace,
obscenity, solicitation of legal business,
and the other various other formulae for the
repression of expression that have been
challenged in this Court, libel can claim no
talismanic immunity from constitutional
limitations. It must be measured by
standards that satisfy the First
Amendment.
xxx xxx xxx
Those who won our independence
believed ... that public discussion is a
political duty; and that this should be a
fundamental principle of the American
government. They recognized the risk to
which all human institutions are subject.
But they knew that order cannot be secured
merely through fear of punishment for its
infraction; that it is hazardous to discourage
thought, hope and imagination; that fear
breeds repression; that repression breeds
hate; that hate menaces stable
government; that the path of safety lies in
the opportunity to discuss freely supposed
grievances and proposed remedies; and
that the fitting remedy for evil counsel is
good ones. Believing in the power of
reason as applied through public
discussion, they eschewed silence coerced
by law—the argument of force in its worst
form. ...
Thus we consider this case against the
background of a profound national
commitment to the principle that debate on
public issues should be uninhibited, robust,
and wide open, and that it may well include
vehement, caustic, and sometimes
unpleasantly sharp attacks on government
and public officials. ... (at pp. 700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is
there a prima facie showing that Messrs. Maximo Soliven,
Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L.
Manzanas knowingly participated in a wilful purveying of
falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their
particular liabilities be taken instead of lumping up everybody
with the offending columnist? I realize that the law includes
publishers and editors but perhaps the "chilling effect" issue
applies with singular effectivity to publishers and editors vis-a-
vis newspaper columnists. There is no question that, ordinarily,
libel is not protected by the free speech clause but we have to
understand that some provocative words, which if taken
literally may appear to shame or disparage a public figure, may
really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal
prosecution in the type of case now before us dampen the vigor
and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been
considered.
I, of course, concur with the Court's opinion because it has
decided to limit the issues to narrowly drawn ones. I see no
reason to disagree with the way the Court has resolved them.
The first issue on prematurity is moot. The second issue
discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he
issues a warrant of arrest. Anent the third issue, considerations
of public policy dictate that an incumbent President should not
be sued. At the same time, the President cannot stand by
helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.
The Court has decided to defer the "chilling effect" issue for a
later day. To this, I take exception. I know that most of our
fiscals and judges are courageous individuals who would not
allow any considerations of possible consequences to their
careers to stand in the way of public duty. But why should we
subject them to this problem? And why should we allow the
possibility of the trial court treating and deciding the case as
one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues
involving government power and freedom of expression.
However, since we have decided to defer the "chilling effect"
issue for a later day, I limit myself to reiterating the dissenting
words of Mr. Justice Jackson in the American case
of Beaurnhais v. Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment
of legal history on any subject, it is that
criminal libel laws are consistent with the
FINALS CONSTITUTION I ACJUCO 327

concept of ordered liberty only when

applied with safeguards evolved to prevent
their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the

safeguards in the name of freedom of expression should be
faithfully applied.