Case List No.
1; Case 1 CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS,
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL,
GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-
IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
1
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT
C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA
P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M.
TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, All powers need some restraint; practical adjustments rather than
vs. rigid formula are necessary.1 Superior strength – the use of force –
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO cannot make wrongs into rights. In this regard, the courts should be
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents. vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
G.R. No. 171489 May 3, 2006
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. most relevant. He said: "In cases involving liberty, the scales of
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, justice should weigh heavily against government and in favor of the
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, poor, the oppressed, the marginalized, the dispossessed and the
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR weak." Laws and actions that restrict fundamental rights come to the
OF THE PHILIPPINES (IBP), Petitioners, courts "with a heavy presumption against their constitutional
vs. validity."2
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND These seven (7) consolidated petitions for certiorari and prohibition
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP allege that in issuing Presidential Proclamation No. 1017 (PP 1017)
CHIEF, Respondents. and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend that
x-------------------------------------x respondent officials of the Government, in their professed efforts to
defend and preserve democratic institutions, are actually trampling
G.R. No. 171424 May 3, 2006 upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
LOREN B. LEGARDA, Petitioner, unconstitutional.
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT Once again, the Court is faced with an age-old but persistently
AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY modern problem. How does the Constitution of a free people combine
AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); the degree of liberty, without which, law becomes tyranny, with the
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE degree of law, without which, liberty becomes license?3
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents. On February 24, 2006, as the nation celebrated the 20th Anniversary
of the Edsa People Power I, President Arroyo issued PP 1017 declaring
DECISION a state of national emergency, thus:

SANDOVAL-GUTIERREZ, J.: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the

Republic of the Philippines and Commander-in-Chief of the Armed
2
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
"The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .," 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 – the historical enemies of the
democratic Philippine State – 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 – by
obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government
and their faith in the future of this country;
3
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 – 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;
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 people’s 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.
4
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 People’s 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 petitioners’
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 respondents’ 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 "show 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." 5
On February 17, 2006, the authorities got hold of a document entitled
"Oplan Hackle I " 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 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
5
the Magdalo Group and the National People’s 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 "Magdalo’s D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I."
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 "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are
under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s 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 group’s 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 Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."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 "Ka Roger" Rosal declared: "The 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."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-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." 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 President’s
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
6
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 President’s mind
were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can
already be implemented."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 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 "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any media
organization that would not follow "standards set by the government
during the state of national emergency." Director General Lomibao
stated that "if they do not follow the standards – 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 – we will recommend a ‘takeover.’" National
Telecommunications’ Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration
7
of the state of national emergency. He asked for "balanced
reporting" 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. Beltran’s 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 Montaño, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna Representative
Teodoro Casiño 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 "Batasan 5" 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) itis 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 CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers only to
tsunami, typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" 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 Casiño, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute "usurpation of
legislative powers"; "violation of freedom of expression" and "a
8
declaration of martial law." They alleged that President Arroyo
"gravely 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."
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 415 of Article II, (b) Sections 1,16 2,17 and 418 of
Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article
XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged
that PP 1017 is an "arbitrary and unlawful exercise by the President of
her Martial Law powers." And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that "it amounts to an
exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes
beyond the nature and function of a proclamation as defined under
the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional 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." In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.
In respondents’ 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 people’s 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) Whetherthe 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
9
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
"self-starting capacity."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 "definite
and concrete, touching the legal relations of parties having adverse
legal interest;" 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
"moot and academic" by President Arroyo’s 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 case28 or dismiss it on ground of
mootness.29
The Court holds that President Arroyo’s 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 "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30
The "moot and academic" 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 Court’s
assumption of jurisdiction over the instant petitions. Petitioners
10
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 public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the
Court has the 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, respondents’ 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. Panganiban’s Separate
Opinion in Sanlakas v. Executive Secretary.36 However, they failed to
take into account the Chief Justice’s very statement that an otherwise
"moot" case may still be decided "provided 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." 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 "a right of appearance in a court of justice
on a given question."37 In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."38 Succinctly put,
the plaintiff’s 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 "public right" 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 "stranger," or in the category of a
"citizen," or ‘taxpayer." 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 "citizen" or "taxpayer.
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,39 where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s
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 "In matter of mere public right, however…the
people are the real parties…It 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 taxpayer’s suits, Terr v. Jordan41 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."
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 "direct injury" 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.
11
This Court adopted the "direct injury" test in our jurisdiction.
In People v. Vera,44 it held that the person who impugns 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." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’
Association v. De la Fuente,46 Pascual v. Secretary of Public
Works47 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 "transcendental
importance" 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 "far-reaching implications" 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 "transcendental importance." 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 "given 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 review" 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 "Balikatan 02-01" involves the exercise
of Congress’ taxing or spending powers, it reiterated its ruling
in Bagong Alyansang Makabayan v. Zamora,55that 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
12
(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
Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s 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 "direct injury" test with
respect to concerned citizens’ cases involving constitutional issues. It
held that "there must be a showing that the citizen personally
suffered some actual or threatened injury arising from the alleged
illegal official act."
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 President’s 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 "direct injury" resulting from "illegal arrest" and
"unlawful search" 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
63 64
Corporation, and Tañada v. Tuvera, 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, KMU’s 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,
13
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.
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 "liberality doctrine" 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 "transcendental importance" doctrine, a relaxation
of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
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 people68 but he may be removed from
office only in the mode provided by law and that is by
impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not "necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang
14
v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The
tug-of-war always cuts across the line defining "political questions,"
particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of
the government."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, "under 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 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."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 "in 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."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most
pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it
stressed that "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."This ruling is mainly a result of the Court’s 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 "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
the government." 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
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis" and that if he
fails, by way of proof, to support his assertion, then "this Court
cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual basis.
A reading of the Solicitor General’s 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
15
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.
Indeed, judging the seriousness of the incidents, President Arroyo
was not expected to simply fold her arms and 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 "power to act according
to discretion for the public good, without the proscription of the law
and sometimes even against it."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 "the people have no other remedy in this, as
in all other cases where they have no judge on earth, but to appeal
to Heaven."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 State…
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 people’s first intention is that the
State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely
be cheapened by "indiscreet use." He was unwilling to rely upon an
"appeal to heaven." 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: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
16
Nicollo Machiavelli’s 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 –constitutional 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 – in contrast to Locke, Rosseau and Mill – 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 "no reason why absolutism should not be used as a
means for the defense of liberal institutions," provided it "serves 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."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 "imposing limitation upon that power."93 Watkins placed his
real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of
dictatorship must be relatively short…Dictatorship should always be
strictly legitimate in character…Final authority to determine the
need for dictatorship in any given case must never rest with the
dictator himself…"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power – in a government
where power has consciously been divided – to cope with… 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."96 Friedrich, too, offered criteria for judging the adequacy of any
of scheme of emergency powers, to wit: "The emergency executive
must be appointed by constitutional means – i.e., he must be
legitimate; he should not enjoy power to determine the existence of
an emergency; emergency powers should be exercised under a strict
time limitation; and last, the objective of emergency action must be
the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and
the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems
presented by emergency.98 Like Watkins and Friedrich, he stated a
priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its
constitutional order…
17
2) …the decision to institute a constitutional dictatorship
should never be in the hands of the man or men who will
constitute the dictator…
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit
of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . .
.
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every
action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like
the decision to institute one should never be in the hands of
the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
 11) …the termination of the crisis must be followed by a
complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in
light of recent experience, were one in saying that, "the suggestion
that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether the term
"dictator" is used in its normal sense (as applied to authoritarian
rulers) or is employed to embrace all chief executives administering
emergency powers. However used, "constitutional dictatorship"
cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the
"concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis
of problems of emergency powers, and which is consistent with the
findings of this study, is that formulated by Charles H. McIlwain.
While it does not by any means necessarily exclude some
indeterminate limitations upon the substantive powers of
government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate
18
processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective
checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there
is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
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 –- from Lock’s "theory of prerogative," to
Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- 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 Jackson’s "balanced power
102
structure." 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. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" 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 "on their faces" 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 "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of
the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion
are considered "harmful" and "constitutionally unprotected conduct."
In Broadrick v. Oklahoma,105 it was held:
19
It remains a ‘matter of no little difficulty’ to determine when a law
may properly be held void on its face and when ‘such summary
action’ 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 ‘pure speech’
toward conduct and that conduct –even if expressive – 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 "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."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 "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"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 "on its face," not merely "as applied for" 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
"chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression." 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.
20
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 "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing
"on their faces" 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:
"by virtue of the power vested upon me by Section 18, Artilce VII …
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 rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s 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.
21
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 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 "sequence" 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
"whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." 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
Office’s 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 President’s 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 President’s authority to declare a "state of rebellion" (in Sanlakas)
and the authority to proclaim a state of national emergency. While
President Arroyo’s authority to declare a "state of rebellion"
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. – Proclamations. – 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 Arroyo’s declaration of a "state of rebellion" 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
22
State’s 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 "warn[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."113
In his "Statement before the Senate Committee on Justice" 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
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" 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 vested,115 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,
23
among others, "execute its laws."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 Police118 under the
Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, 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 "to enforce obedience
to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017
operative clause shows that it was lifted120 from Former President
Marcos’ 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: "to enforce obedience to
all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." 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."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my
direction."
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. — 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. — 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. — 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.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which
24
only concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — 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. — 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.
President Arroyo’s 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
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To
be sure, neither Martial Law nor a state of rebellion nor a state of
emergency can justify President Arroyo’s 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 "laws," 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 "to all the laws and to all decrees x x x" 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.
25
This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President
Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the
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."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyo’s inclusion of Section 17,
Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" 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 "other national
emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of
national emergency" 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 "state of national emergency." 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.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public
interest, is a 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
26
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 "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," 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
"The executive Power shall be vested in a President . . . .;" that "he
shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United
States.
The order cannot properly be sustained as an exercise of the
President’s 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 "theater of war" 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 nation’s
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 President’s
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
"All legislative Powers herein granted shall be vested in a Congress
of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency"
under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-
27
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
128
heads: a) economic, b) natural 129
disaster, and c) national
security.130
"Emergency," 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:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" 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
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency"
refers to military national emergency or could this be economic
emergency?"
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.
"x 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 – 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,
28
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 ‘the various branches, executive, legislative, and
judicial,’ given the ability to act, are called upon ‘to perform the
duties and discharge the responsibilities committed to them
respectively."
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. "AS APPLIED CHALLENGE"
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 "direct injury."
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 20th Anniversary 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
"raided and ransacked without warrant" their office. Three policemen
were assigned to guard their office as a possible "source of
destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were "turned away and dispersed"
when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the "direct injuries" 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 misabused135 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
29
effects in a particular case.137 PP 1017 is merely an invocation of the
President’s 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
citizens’ 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 "acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer to
his subordinates precisely for the proper and efficient administration
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 "necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with
"invasion, insurrection or rebellion," the phrase "acts of terrorism" is
still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" 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 "fight
against terrorism" 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
"sponsoring terrorism" 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 – or threats of
the use of force as the most recent by the United States against Iraq –
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 "One country’s
terrorist is another country’s freedom fighter." The apparent
contradiction or lack of consistency in the use of the term "terrorism"
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
30
controlled the territory at the time, but later became internationally
respected statesmen.
What, then, is the defining criterion for terrorist acts – 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
"terrorism" with any violent act by non-state groups against 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) – which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims – the Kashmiri resistance
groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua –
freedom fighters for the United States, terrorists for the Socialist
camp – 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 – 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 "fluctuate" 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
"liberation struggle," not of "terrorism" 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
"policy of double standards" on this vital issue of international affairs
has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of
sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – 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 "acts of terrorism" 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
31
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 "terrorism" 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
"Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That 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."
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
"acts of terrorism." Since there is no law defining "acts of terrorism,"
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 "acts of terrorism" 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 "the 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 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."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 Account144 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 "held his head and tried to push
him" inside an unmarked car; fifth, he was charged with Violation
of Batas Pambansa Bilang No. 880145 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:
32
(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 David’s warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and 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.
"Assembly" 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
sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the
arresting officers’ 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
33
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 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 Malacañang’s 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 "freedom 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."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 citizens’ 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 person’s 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. Petitioners’
narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were
searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at
about 1:00 o’ 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 "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –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 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television and
radio networks to "cooperate" 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
occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and
34
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 petitioners’ 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 Staff152 this
Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
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 "Metropolitan Mail" and "We Forum" 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 any stealthy
encroachments thereon. The motto should always be obsta
principiis.154
Incidentally, during the oral arguments, the Solicitor General
admitted that the search of the Tribune’s offices and the seizure of its
materials for publication and other papers are illegal; and that the
same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these
clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I
think and I know, Your Honor, and these are inadmissible for any
purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
35
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go
there at 1 o’clock in the morning and without any search warrant?
Did they become suddenly part of the evidence of rebellion or inciting
to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based
on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it
is premature to say this, we do not condone this. If the people who
have been injured by this would want to sue them, they can sue and
there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police
were, according to the Solicitor General, illegal and cannot be
condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot
be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is
their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional
or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances.
Its ratiocination has been exhaustively presented. At this point,
suffice it to reiterate that PP 1017 is limited to the calling out by the
President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant
to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
36
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of
this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued.
Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies" become
"unruly and violent." Consequently, the transcendental issues raised
by the parties should not be "evaded;" they must now be resolved to
prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as
it constitutes a call by the President for 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 earlier. However, PP 1017’s extraneous provisions giving
the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not related
to lawless violence as well as decrees promulgated by the President;
and (3) to impose standards on media or any form of prior restraint
on the press, are ultra vires and unconstitutional. The Court also rules
that under Section 17, Article XII of the Constitution, the President, in
the absence of a legislation, cannot take over privately-owned public
utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued
by the President – acting as Commander-in-Chief – addressed to
subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and
the police should take only the "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be
deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the
AFP’s authority in carrying out this portion of G.O. No. 5.
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 and NAFLU-KMU members; (3) the
imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other
materials, 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
37
times, yet they should not be arbitrary as to unduly restrain our
people’s 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
"necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of
terrorism" 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 13 Petition in G.R. No. 171400, p. 11.
warrantless search of the Tribune offices and whimsical seizure of its 14 Ibid.
articles for publication and other materials, are 15 The prime duty of the Government is to serve and protect

declared UNCONSTITUTIONAL. the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens
No costs. may be required, under conditions provided by law, to render
personal military or civil service.
SO ORDERED. 16 No person shall be deprived of life, liberty, or property

without due process of law, nor shall any person be denied

ANGELINA SANDOVAL-GUTIERREZ the equal protection of the laws.
Associate Justice 17 The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches

Footnotes
1 Law and Disorder, The Franklin Memorial Lectures, Justice
Tom C. Clark – Lecturer, Volume XIX, 1971, p. 29.
2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity,
February 15, 2006.
3 Articulated in the writings of the Greek philosopher,
Heraclitus of Ephesus, 540-480 B.C., who propounded
universal impermanence and that all things, notably opposites
are interrelated.
4 Respondents’ Comment dated March 6, 2006.
5 Ibid.
6 Ibid.
7 Minutes of the Intelligence Report and Security Group,
Philippine Army, Annex "I" of Respondents’ Consolidated
Comment.
8 Respondents’ Consolidated Comment.
9 Ibid.
10 Ibid.
11 Petition in G.R. No. 171396, p. 5.
12 Police action in various parts of Metro Manila and the
reactions of the huge crowds being dispersed were broadcast
as "breaking news" by the major television stations of this
and seizures 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 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.
18 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.
19 (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.
20 In times of national emergency, when the public interest so

country. requires, the State may, during the emergency and under
38
reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately owned public utility or
business affected with public interest.
21 1 Cranch 137 [1803].
22 Howard L. MacBain, "Some Aspects of Judicial
Review," Bacon Lectures on the Constitution of the United
States (Boston: Boston University Heffernan Press, 1939), pp.
376-77.
23 The Court has no self-starting capacity and must await the
action of some litigant so aggrieved as to have a justiciable
case. (Shapiro and Tresolini, American Constitutional Law,
Sixth Edition, 1983, p. 79).
24 Cruz, Philippine Political Law, 2002 Ed., p. 259.
25 Ibid.
26 Province of Batangas v. Romulo, G.R. No. 152774, May 27,
2004, 429 SCRA 736.
27 Banco Filipino Savings and Mortgage Bank v. Tuazon,
Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129; Vda. De
Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426
SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431,
November 11, 2003, 415 SCRA 590.
28 Royal Cargo Corporation v. Civil Aeronautics Board, G.R.
Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De
Dabao v. Court of Appeals, supra.
29 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA
756.
30 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v.
Shelby, 118 U.S. 425.
31 Province of Batangas v. Romulo, supra.
32 Lacson v. Perez, supra.
33 Province of Batangas v. Romulo, supra.
34 Albaña v. Commission on Elections, G.R. No. 163302, July 23,
2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855,
July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary,
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
39
35 Salonga v. Cruz Paño, et al., No. L- 59524, February 18,
1985, 134 SCRA 438.
36 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
37 Black’s Law Dictionary, 6th Ed. 1991, p. 941.
38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
39 275 Ky 91, 120 SW2d 765 (1938).
40 19 Wend. 56 (1837).
41 232 NC 48, 59 SE2d 359 (1950).
42 302 U.S. 633.
43 318 U.S. 446.
44 65 Phil. 56 (1937).
45 G.R. No. 117, November 7, 1945 (Unreported).
46 G.R. No. 2947, January 11, 1959 (Unreported).
47 110 Phil. 331 (1960).
48 77 Phil. 1012 (1947).
49 84 Phil. 368 (1949) The Court held: "Above all, the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure."
50 L-No. 40004, January 31, 1975, 62 SCRA 275.
51 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA
27, where the Court held that where the question is one of
public duty and the enforcement of a public right, the people
are the real party in interest, and it is sufficient that the
petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119,
May 29, 1987, 150 SCRA 530, where the Court held
that in cases involving an assertion of a public right,
the requirement of personal interest is satisfied by the
mere fact that the petitioner is a citizen and part of the
general public which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163
SCRA 371, where the Court held that objections to
taxpayers’ lack of personality to sue may be
disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175
SCRA 264, where the Court held that while no
expenditure of public funds was involved under the
questioned contract, nonetheless considering its
important role in the economic development of the
country and the magnitude of the financial
consideration involved, public interest was definitely
involved and this clothed petitioner with the legal
personality under the disclosure provision of the
Constitution to question it.
Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July
14, 1989, 175 SCRA 343, where the Court ruled that
while petitioners are strictly speaking, not covered by
the definition of a "proper party," nonetheless, it has
the discretion to waive the requirement, in
determining the validity of the implementation of the
CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November
19, 1990, 191 SCRA 452, where the Court held that it
enjoys the open discretion to entertain taxpayer’s suit
or not and that a member of the Senate has the
requisite personality to bring a suit where a
constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31,
1991, 197 SCRA 771, where the Court held that
petitioner as a taxpayer, has the personality to file the
instant petition, as the issues involved, pertains to
illegal expenditure of public money;
Osmeña v. Comelec, G.R. No. 100318, 100308,
100417,100420, July 30, 1991, 199 SCRA 750, where
the Court held that where serious constitutional
questions are involved, the "transcendental
40
importance" to the public of the cases involved
demands that they be settled promptly and definitely,
brushing aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992,
208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does
the political exercise of qualified voters affected by the
apportionment, necessitates the brushing aside of the
procedural requirement of locus standi.
52 G.R. No. 133250, July 9, 2002, 384 SCRA 152.
53 G.R. Nos. 138570, 138572, 138587, 138680, 138698,
October 10, 2000, 342 SCRA 449.
54 G.R. No. 151445, April 11, 2002, 380 SCRA 739.
55 Supra.
56 G.R. No. 118910, November 16, 1995, 250 SCRA 130.
57 G.R. No. 132922, April 21, 1998, 289 SCRA 337.
58 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001,
357 SCRA 756.
59 G.R. No. 159085, February 3, 2004, 421 SCRA 656.
60 235 SCRA 506 (1994).
61 Supra.
62 Supra.
63 197 SCRA 52, 60 (1991).
64 Supra.
65 See NAACP v. Alabama, 357 U.S. 449 (1958).
66 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
67 From the deliberations of the Constitutional Commission,
the intent of the framers is clear that the immunity of the
President from suit is concurrent only with his tenure and not
his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004
Ed., p. 302).
68 Section 1, Article XI of the Constitution provides: 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.
69 Ibid., Sec. 2.
70 No. 2908, September 30, 2005, 471 SCRA 87.
71 91 Phil. 882 (1952).
72 No. L-33964, December 11, 1971, 42 SCRA 448.
73 No. L-35546, September 17, 1974, 59 SCRA 183.
74 No. L-61388, April 20, 1983, 121 SCRA 472.
75 Tañada v. Cuenco, 103 Phil. 1051 (1957).
76 Lansang v. Garcia, supra, pp. 473 and 481.
77 Supra.
78 "Five Justices – Antonio, Makasiar, Esguerra, Fernandez, and
Aquino – took the position that the proclamation of martial
should abstain from interfering with the Executive’s
Proclamation." (Bernas, The 1987 Constitution of the Republic
of the Philippines: A Commentary, 1996 Edition, p. 794.)
79 See Separate Opinion of J. Puno in Integrated Bar of the
Philippines v. Zamora, supra.
80 Supra.
81 Cruz, Philippine Political Law, 2002 Ed., p. 247.
82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18,
1998, 298 SCRA 756.
83 Supra, 481-482.
84 Smith and Cotter, Powers of the President during Crises,
1972, p. 6.
85 Ibid.

law and the arrest and detention orders accompanying the 86 The Social Contract (New York: Dutton, 1950), pp. 123-124.

proclamation posed a "political question" beyond the 87 Smith and Cotter, Powers of the President during Crises,

jurisdiction of the Court. Justice Antonio, in a separate opinion 1972, pp. 6-7.
concurred in by Makasiar, Fernandez, and Aquino, argued that 88 Representative Government, New York, Dutton, 1950, pp.

the Constitution had deliberately set up a strong presidency 274, 277-78.

and had concentrated powers in times of emergency in the 89 The Discourses, Bk. 1, Ch. XXXIV.

hands of the President and had given him broad authority and 90 Smith and Cotter, Powers of the President During Crises,

discretion which the Court was bound to respect. He made 1972. p. 8.

reference to the decision in Lansang v. Garcia but read it as in 91 Ibid.

effect upholding the "political question" position. Fernandez, 92 See The Problem of Constitutional Dictatorship, p. 328.

in a separate opinion, also argued Lansang, even understood 93 Ibid., p. 353.

as giving a narrow scope of review authority to the Court, 94 Ibid., pp. 338-341.

affirmed the impossible task of ‘checking’ the action taken by 95 Smith and Cotter, Powers of the President During
the President. Hence, he advocated a return to Barcelon v. Crises, 1972, p. 9.
Baker. Similarly, Esguerra advocated the abandonment 96 Constitutional Government and Democracy, Ch. XXVI, rev.

of Lansang and a return to Barcelon. And, although Justices ed., Boston: Ginn & Co., 1949, p. 580.
Castro, Fernando, Muñoz- Palma, and, implicitly, Teehankee, 97 Ibid, pp. 574-584.

lined up on the side of justiciability as enunciated in Lansang, 98 Smith and Cotter, Powers of the President During Crises,

x x x Barredo, however, wanted to have the best of both 1972, p. 10.

worlds and opted for the view that "political questions are 99 Rossiter, Constitutional Dictatorship, Princeton: Princeton

not per se beyond the Court’s jurisdiction ... but that as a University Press, 1948, pp. 298-306.
matter of policy implicit in the Constitution itself the Court
41
100 Smith and Cotter, Powers of the President During
Crises, 1972, p. 11.
101 Smith and Cotter, Powers of the President During
Crises, 1972, p. 12.
102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579;
72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion
J. Jackson.
103 See Concurring Opinion of Justice Mendoza in Estrada v.
Sandiganbayan, G.R. No. 148560, November 19, 2001, 369
SCRA 393.
104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
105 Supra.
106 See Concurring Opinion of Justice Mendoza in Estrada v.
Sandiganbayan, supra.
107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).
108 Ibid.
109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United
States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of
Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d
388 (1989).
110 Ermita-Malate Hotel and Motel Operators Association v.
City Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967).
111 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein
this Court sustained President Arroyo’s declaration of a "state
of rebellion" pursuant to her calling-out power.
112 Supra.
113 Westel Willoughby, Constitutional Law of the United States
1591 [2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA
183 (1974), (Fernando, J., concurring)].
114 Retired Associate Justice of the Supreme Court.
115 Section 1, Article VII of the Constitution.
116 Section 5, Article VII of the Constitution.
117 Section 18, Article VII of the Constitution.
118 Section 6, Article XVI of the Constitution.
119 See Republic Act No. 6975.
42
120 Ironically, even the 7th Whereas Clause of PP 1017 which
states that "Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and
the State the primary duty of Government" replicates more
closely Section 2, Article 2 of the 1973 Constitution than
Section 4, Article 2 of the 1987 Constitution which provides
that, "[t[he prime duty of the Government is to serve and
protect the people."
121 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1,
citing Legaspi v. Ministry of Finance, 115 SCRA 418
(1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v.
Commission on Election, supra.
122 Section 17, Article XIV of the 1973 Constitution reads: "In
times of national emergency when the public interest so
requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business
affected with public interest."
123 Antieau, Constitutional Construction, 1982, p.21.
124 Cruz, Philippine Political Law, 1998, p. 94.
125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
126 Tresolini, American Constitutional Law, 1959, Power of the
President, pp. 255-257.
127 Smith and Cotter, Powers of the President During
Crises, 1972, p. 14
128 The Federal Emergency Relief Act of 1933 opened with a
declaration that the economic depression created a serious
emergency, due to wide-spread unemployment and the
inadequacy of State and local relief funds, . . . making it
imperative that the Federal Government cooperate more
effectively with the several States and Territories and the
District of Columbia in furnishing relief to their needy and
distressed people. President Roosevelt in declaring a bank
holiday a few days after taking office in 1933 proclaimed that
"heavy and unwarranted withdrawals of gold and currency
from … banking institutions for the purpose of hoarding; ...
resulting in "sever drains on the Nation’s stocks of gold … have
created a national emergency," requiring his action. Enacted
within months after Japan’s attack on Pearl Harbor,
the Emergency Price Control Act of 1942 was designed to
prevent economic dislocations from endangering the national
defense and security and the effective prosecution of the war.
(Smith and Cotter, Powers of the President During
Crises, 1972, p.18)
129 The Emergency Appropriation Act for Fiscal
1935 appropriated fund to meet the emergency and necessity
for relief in stricken agricultural areas and in another section
referred to "the present drought emergency."[129] The India
Emergency Food Aid Act of 1951 provided for emergency
shipments of food to India to meet famine conditions then
ravaging the great Asian sub-continent. The Communication
Act of 1934 and its 1951 amendment grant the President
certain powers in time of "public peril or disaster." The other
statutes provide for existing or anticipated emergencies
attributable to earthquake, flood, tornado, cyclone, hurricane,
conflagration an landslides.[129] There is also a Joint
Resolution of April 1937. It made "funds available for the
control of incipient or emergency outbreaks of insect pests or
plant diseases, including grasshoppers, Mormon crickets, and
chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.
130 National Security may be cataloged under the heads
of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act
of 1950 contemplated an attack or series of attacks by an
enemy of the United States which conceivably would cause
substantial damage or injury to civilian property or persons in
the United States by any one of several means; sabotage, the
use of bombs, shellfire, or atomic, radiological, chemical,
bacteriological means or other weapons or processes. Such an
occurrence would cause a "National Emergency for Civil
Defense Purposes," or "a state of civil defense emergency,"
43
during the term which the Civil Defense Administrator would
have recourse to extraordinary powers outlined in the Act.
The New York-New Jersey Civil Defense Compact supplies an
illustration in this context for emergency cooperation.
"Emergency" as used in this compact shall mean and
include invasion, or other hostile
action, disaster, insurrection or imminent danger thereof.
( Id., p.15-16)
131 Cruz, Philippine Political Law, 1998, p. 95.
132 Record of the Constitutional Commission, Vol. III, pp. 266-
267.
133 Record of the Constitutional Convention, pp. 648-649.
134 84 Phil. 368 (1949).
135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
136 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM
346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653,
50 S Ct 158.
137 Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester
v. Gutberlett, 211 NY 309, 105 NE 548.
138 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed
530, 29 S Ct 370.
139 De Leon and De Leon Jr., Administrative Law, Text and
Cases, 2001 Ed., p. 115.
140 Ibid.
141 In a Lecture delivered on March 12, 2002 as part of the
Supreme Court Centenary Lecture Series, Hans Koechler,
Professor of Philosophy at the University of Innsbruck
(Austria) and President of the International Progress
Organization, speaking on "The United Nations, The
International Rule of Law and Terrorism" cited in the
Dissenting Opinion of Justice Kapunan in Lim v. Executive
Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
142 Section 2, Article III of the 1987 Constitution.
143 Bernas, The 1987 Constitution of the Republic of the
Philippines, A Reviewer-Primer, p. 51.
 144 Annex "A" of the Memorandum in G.R. No. 171396, pp. Justice Angelina Sandoval Gutierrez’s 78-page ponencia was
271-273. concurred in by 10 Justices: Chief Justice Artemio V. Panganiban and
145 An Act Ensuring the Free Exercise by the People of their Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio
Right Peaceably to Assemble and Petition the Government for T. Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio Morales,
Other Purposes. Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and
146 Annex "A" of the Memorandum in G.R. No. 171396, pp. Cancio C. Garcia.
271-273. Both the Chief Justice and Justice Ynares-Santiago wrote separate
147 Ibid. concurring opinions. The Chief Justice’s concurring opinion was joined
148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278. by Justices Carpio, Carpio Morales, and Callejo, Sr.
149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 Justice Dante O. Tinga’s dissenting opinion was joined by Justices
SCRA 553. Renato C. Corona and Presbitero J. Velasco, Jr.
150 Section 5. Application requirements - All applications for a EN BANC
permit shall comply with the following guidelines:
xxxxxx
(c) If the mayor is of the view that there is imminent
and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be heard
on the matter. Case List No. 1; Case 2
151 Petition in G.R. No. 171400, p. 11.
EN BANC
152 No. L-64161, December 26, 1984, 133 SCRA 816.
153 Dissenting Opinion, J. Cruz, National Press Club v.
G.R. No. 192935 December 7, 2010
Commission on Elections, G.R. Nos. 102653, 102925 & 102983,
March 5, 1992, 207 SCRA 1. LOUIS "BAROK" C. BIRAOGO, Petitioner,
154 Boyd v. United States, 116 U.S. 616 (1886).
vs.
155 Transcript of Stenographic Notes, Oral Arguments, March
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
7, 2006, p. 470.
156 Ibid., pp. 432-433.
x - - - - - - - - - - - - - - - - - - - - - - -x
157 Ibid, pp. 507-508.
158 Smith and Cotter, Powers of the President During Crisis,
G.R. No. 193036
1972, p. 146.
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SUMMARY OF THE VOTING IN THE PP 1017 DECISION SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
Fourteen of the 15 SC justices participated in the decision. Senior SR., Petitioners,
Associate Justice Reynato S. Puno was on leave.
44
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT
OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B.
ABAD, Respondents.
DECISION
MENDOZA, J.:
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.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is the
basic and paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land, must
defer.3 Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and
accommodate the call of situations and much more tailor itself to the
whims and caprices of government and the people who run it.4
For consideration before the Court are two consolidated cases5 both
of which essentially assail the validity and constitutionality of
Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
45
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a
citizen and taxpayer. Biraogo assails Executive Order No. 1 for being
violative of the legislative power of Congress under Section 1, Article
VI of the Constitution6 as it usurps the constitutional authority of the
legislature to create a public office and to appropriate funds
therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari
and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B.
Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of
Representatives.
The genesis of the foregoing cases can be traced to the events prior
to the historic May 2010 elections, when then Senator Benigno
Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang
mahirap." The Filipino people, convinced of his sincerity and of his
ability to carry out this noble objective, catapulted the good senator
to the presidency.
To transform his campaign slogan into reality, President Aquino found
a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance
of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects
the political, economic, and social life of a nation; in a very special
way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
46
will recommend the prosecution of the offenders and secure justice
for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to reorganize
the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by
law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such
graft and corruption which it will investigate;
b) Collect, receive, review and evaluate evidence
related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to
this end require any agency, official or employee of the
Executive Branch, including government-owned or
controlled corporations, to produce documents, books,
records and other papers;
c) Upon proper request or representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters
or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain
information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the
regular courts, as the case may be;
e) Invite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths or
affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize
any person as a state witness to ensure that the ends
47
of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of
Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public
officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in
the course of its investigation the Commission finds
that there is reasonable ground to believe that they
are liable for graft and corruption under pertinent
applicable laws;
h) Call upon any government investigative or
prosecutorial agency such as the Department of Justice
or any of the agencies under it, and the Presidential
Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its
functions and duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as
necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the
presentation of evidence;
 k) Exercise such other acts incident to or are
appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
48
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. –
x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly
by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the
Office of the President with the primary task to investigate reports of
graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during
the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman.
Though it has been described as an "independent collegial body," it is
essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an
ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body
as it cannot adjudicate, arbitrate, resolve, settle, or render awards in
disputes between contending parties. All it can do is gather, collect
and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no power
to cite people in contempt, much less order their arrest. Although it is
a fact-finding body, it cannot determine from such facts if probable
cause exists as to warrant the filing of an information in our courts of
law. Needless to state, it cannot impose criminal, civil or
administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-
finding bodies "to establish the facts and context of serious violations
of human rights or of international humanitarian law in a country’s
past."9 They are usually established by states emerging from periods
of internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
49
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that
finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.10 "Commission’s
members are usually empowered to conduct research, support
victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge
them. They may aim to prepare the way for prosecutions and
recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa,
the principal function of which was to heal the wounds of past
violence and to prevent future conflict by providing a cathartic
experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the
marching order of the PTC is the identification and punishment of
perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk
about reconciliation, if they mean that they would like us to simply
forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice. When
we allow crimes to go unpunished, we give consent to their occurring
over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are
essentially the same. The petitioners-legislators summarized them in
the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates
the power of the Congress to create a public office and
appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to
structurally reorganize the Office of the President to achieve
economy, simplicity and efficiency does not include the power
to create an entirely new public office which was hitherto
inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-
judicial powers duplicating, if not superseding, those of the
Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it
selectively targets for investigation and prosecution officials
and personnel of the previous administration as if corruption
is their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of
four decades wherein States constitute truth commissions to
50
exclusively investigate human rights violations, which
customary practice forms part of the generally accepted
principles of international law which the Philippines is
mandated to adhere to pursuant to the Declaration of
Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in
futility, an adventure in partisan hostility, a launching pad for
trial/conviction by publicity and a mere populist propaganda
to mistakenly impress the people that widespread poverty will
altogether vanish if corruption is eliminated without even
addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even
a statute."13
In their Consolidated Comment,14 the respondents, through the
Office of the Solicitor General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed executive order
with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to
create a public office because the President’s executive power
and power of control necessarily include the inherent power
to conduct investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), 15 Presidential
Decree (P.D.) No. 141616 (as amended by P.D. No. 1772), R.A.
No. 9970,17 and settled jurisprudence that authorize the
President to create or form such bodies.
 2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a
mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and
the Department of Justice (DOJ), because it is a fact-finding
body and not a quasi-judicial body and its functions do not
duplicate, supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection
clause because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential
Agency on Reform and Government Operations (PARGO) by President
Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to
file their respective petitions and question Executive Order
No. 1;
2. Whether or not Executive Order No. 1 violates the principle
of separation of powers by usurping the powers of Congress
to create and to appropriate funds for public offices, agencies
and commissions;
51
3. Whether or not Executive Order No. 1 supplants the powers
of the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to question
the validity of the subject act or issuance; otherwise stated, he must
have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.19
Among all these limitations, only the legal standing of the petitioners
has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to
file their petition for failure to demonstrate their personal stake in
the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming to
be the subject of the commission’s investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of
the petitioners-legislators to assail Executive Order No. 1. Evidently,
their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly
justifies their resolve to take the cudgels for Congress as an institution
and present the complaints on the usurpation of their power and
rights as members of the legislature before the Court. As held in
Philippine Constitution Association v. Enriquez,21
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.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in their
office remain inviolate. Thus, they are allowed to question the validity
of any official action which, to their mind, infringes on their
prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds
already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail
52
congressional action but will simply be an exercise of the President’s
power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify
his clamor for the Court to exercise judicial power and to wield the
axe over presidential issuances in defense of the Constitution. The
case of David v. Arroyo24 explained the deep-seated rules on locus
standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice
on a given question." In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit." Succinctly put, the
plaintiff’s 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 "public right" 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 "stranger," or in the category of a
"citizen," or ‘taxpayer." 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 "citizen" or "taxpayer.
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, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s
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: "In matter of mere public right, however…the
people are the real parties…It 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 taxpayer’s suits, Terr v. Jordan 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."
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 "direct injury" test in Ex Parte Levitt, later reaffirmed
in Tileston v. Ullman. 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 "direct injury" test in our jurisdiction.
In People v. Vera, it held that the person who impugns 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."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers’ Association v. De
la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix. [Emphases included. Citations
omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
53
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching significance
to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements may
be relaxed and a suit may be allowed to prosper even where there is
no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,27 ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared
in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29 are non-
existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention
of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar,
they should be resolved for the guidance of all.30 Undoubtedly, the
Filipino people are more than interested to know the status of the
President’s first effort to bring about a promised change to the
country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of
the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching
significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct body of
the Office of the President.31 Thus, in order that the President may
create a public office he must be empowered by the Constitution, a
statute or an authorization vested in him by law. According to
petitioner, such power cannot be presumed32 since there is no
provision in the Constitution or any specific law that authorizes the
President to create a truth commission.33 He adds that Section 31 of
the Administrative Code of 1987, granting the President the
continuing authority to reorganize his office, cannot serve as basis for
the creation of a truth commission considering the aforesaid
provision merely uses verbs such as "reorganize," "transfer,"
"consolidate," "merge," and "abolish."34 Insofar as it vests in the
President the plenary power to reorganize the Office of the President
to the extent of creating a public office, Section 31 is inconsistent
with the principle of separation of powers enshrined in the
Constitution and must be deemed repealed upon the effectivity
thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31
of the Revised Administrative Code: 1) does not permit the President
to create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of
the Office of the President Proper, transfer of functions and transfer
of agencies; and 4) only to achieve simplicity, economy and
efficiency.36 Such continuing authority of the President to reorganize
his office is limited, and by issuing Executive Order No. 1, the
President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
54
commission. Pointing to numerous offices created by past presidents,
it argues that the authority of the President to create public offices
within the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like the other
two branches of government, possesses the inherent authority to
create fact-finding committees to assist it in the performance of its
constitutionally mandated functions and in the exercise of its
administrative functions.38 This power, as the OSG explains it, is but
an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article
VII of the Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure
that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the
functions of the executive department, bureau and office, or interfere
with the discretion of his officials.40 The power of the President to
investigate is not limited to the exercise of his power of control over
his subordinates in the executive branch, but extends further in the
exercise of his other powers, such as his power to discipline
subordinates,41 his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is
entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was
held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President may
create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed
in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional
and structural lines: (1) restructuring the internal organization of the
Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any
other Department/Agency or vice versa; or (3) transferring any
agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions. These point to
situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of
an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not part
of the structure of the Office of the President prior to the enactment
of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of
the power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to the policy
55
in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323
SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions." It takes place
when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and
responsibility between them. The EIIB is a bureau attached to the
Department of Finance. It falls under the Office of the President.
Hence, it is subject to the President’s continuing authority to
reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power 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 with that of the latter.47 Clearly, the power of control is
entirely different from the power to create public offices. The former
is inherent in the Executive, while the latter finds basis from either a
valid delegation from Congress, or his inherent duty to faithfully
execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D. 1416,
as amended by P.D. No. 1772.48 The said law granted the President
the continuing authority to reorganize the national government,
including the power to group, consolidate bureaus and agencies, to
abolish offices, to transfer functions, to create and classify functions,
services and activities, transfer appropriations, and to standardize
salaries and materials. This decree, in relation to Section 20, Title I,
Book III of E.O. 292 has been invoked in several cases such as Larin v.
Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is
already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize
the administrative structure of the national government including the
power to create offices and transfer appropriations pursuant to one
of the purposes of the decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution. In fact, even the Solicitor General agrees with this view.
Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the
last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary
form of government, the legislative and executive powers are fused,
correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be
considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
56
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize
the entire National Government is deemed repealed, at least, upon
the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on
the basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation
of the PTC finds justification under Section 17, Article VII of the
Constitution, imposing upon the President the duty to ensure that the
laws are faithfully executed. Section 17 reads:
Section 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).
As correctly pointed out by the respondents, the allocation of power
in the three principal branches of government is a grant of all powers
inherent in them. The President’s power to conduct investigations to
aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such
authority.51 As explained in the landmark case of Marcos v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is
the power to enforce the laws, for the President is head of state as
well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds
it. Furthermore, the Constitution itself provides that the execution of
the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any
provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be executive.
x x x.
Indeed, the Executive is given much leeway in ensuring that our laws
are faithfully executed. As stated above, the powers of the President
are not limited to those specific powers under the Constitution.53 One
of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department
of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to
look into the administrative charges filed against the employees of
57
the Department of Health for the anomalous purchase of medicines
was upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298
as mandate, the legality of the investigation is sustained. Such validity
is not affected by the fact that the investigating team and the PCAGC
had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President
is entitled to know so that he can be properly advised and guided in
the performance of his duties relative to the execution and
enforcement of the laws of the land. And if history is to be revisited,
this was also the objective of the investigative bodies created in the
past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the
Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to
declare such executive power as non-existent just because the
direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of the
power of Congress to appropriate funds. Further, there is no need to
specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General, "whatever
funds the Congress has provided for the Office of the President will be
the very source of the funds for the commission."55 Moreover, since
the amount that would be allocated to the PTC shall be subject to
existing auditing rules and regulations, there is no impropriety in the
funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws
are faithfully executed is well recognized. It flows from the faithful-
execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by the
officials and employees of his department. He has the authority to
directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers
have been vested in the said body as it cannot adjudicate rights of
persons who come before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in accordance
with the standards laid down by law itself in enforcing and
administering the same law."58 In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by
the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official
58
probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into
by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow
up step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to
find out by careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation," "investigation"
being in turn described as "(a)n administrative function, the exercise
of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec.
257; x x an inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the rights and duties
of the parties to a court case) on the merits of issues raised: x x to
pass judgment on: settle judicially: x x act as judge." And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-
judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in
its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. x x. Implies a
judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions
in a controversy must be accompanied by the authority of applying
the law to the factual conclusions to the end that the controversy
may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by
law.60 Even respondents themselves admit that the commission is
bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of
the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall
task of the commission to conduct a fact-finding investigation."62 The
actual prosecution of suspected offenders, much less adjudication on
the merits of the charges against them,63 is certainly not a function
given to the commission. The phrase, "when in the course of its
investigation," under Section 2(g), highlights this fact and gives
credence to a contrary interpretation from that of the petitioners.
The function of determining probable cause for the filing of the
appropriate complaints before the courts remains to be with the DOJ
and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v. Galicia,65 it
was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared
59
with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians
to investigate complaints against local elective officials. [Emphasis
supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A.
No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically
out of the PTC’s sphere of functions. Its power to investigate is limited
to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement
of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised Administrative
Code is by no means exclusive and, thus, can be shared with a body
likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and
the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide whether or not to
reject the recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead be aided by the
reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of its
apparent transgression of the equal protection clause enshrined in
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1
reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of
this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes the
PTC an "adventure in partisan hostility."66 Thus, in order to be
accorded with validity, the commission must also cover reports of
graft and corruption in virtually all administrations previous to that of
former President Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not
only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been
60
committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the
recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation by
Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification
is not germane to the purpose of Executive Order No. 1 to end
corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the
strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal
protection clause for "the segregation of the transactions of public
officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions
and is germane to the evils which the Executive Order seeks to
correct."72 To distinguish the Arroyo administration from past
administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large
scale graft and corruption in the previous administration which have
eroded public confidence in public institutions. There is, therefore, an
urgent call for the determination of the truth regarding certain
reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the
evil, restore the people’s faith and confidence in the Government and
in their public servants.
Second. The segregation of the preceding administration as the object
of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely
bear the immediate consequence of the policies of the previous
administration.
Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure
that anti-corruption laws are faithfully executed, are more easily
established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence
and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by
the late President Corazon C. Aquino under Executive Order No. 1 to
pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the Saguisag
Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor,
former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is
that of the equality of right which is embodied in Section 1, Article III
61
of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.74
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed."75 It
"requires public bodies and institutions to treat similarly situated
individuals in a similar manner."76 "The purpose of the equal
protection clause is to secure every person within a state’s
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper
execution through the state’s duly constituted authorities."77 "In
other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective."78
The equal protection clause is aimed at all official state actions, not
just those of the legislature.79 Its inhibitions cover all the departments
of the government including the political and executive departments,
and extend to all actions of a state denying equal protection of the
laws, through whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass the
test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is
achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of
the law to him."84
The classification must not be based on existing circumstances only,
or so constituted as to preclude addition to the number included in
the class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not
leave out or "underinclude" those that should otherwise fall into a
certain classification. As elucidated in Victoriano v. Elizalde Rope
Workers' Union85 and reiterated in a long line of cases,86
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 state. 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,
62
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 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. [Citations
omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption
during the previous administration"87 only. The intent to single out
the previous administration is plain, patent and manifest. Mention of
it has been made in at least three portions of the questioned
executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth on,
and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the
private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served
without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating
63
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are
not substantial enough to merit the restriction of the investigation to
the "previous administration" only. The reports of widespread
corruption in the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier administrations which
were also blemished by similar widespread reports of impropriety.
They are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences
do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt
irrelevant to the legitimate and noble objective of the PTC to stamp
out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence
or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer be
the subjects of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous administrations,
given the body’s limited time and resources. "The law does not
require the impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC, to
be true to its mandate of searching for the truth, must not exclude
the other past administrations. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. In the often quoted language of Yick
Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance,
yet, if applied and administered by public authority with an evil eye
and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of
the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented.
The Constitution is the fundamental and paramount law of the nation
to which all other laws must conform and in accordance with which
all private rights determined and all public authority
administered.93 Laws that do not conform to the Constitution should
be stricken down for being unconstitutional.94 While the thrust of the
PTC is specific, that is, for investigation of acts of graft and corruption,
Executive Order No. 1, to survive, must be read together with the
provisions of the Constitution. To exclude the earlier administrations
in the guise of "substantial distinctions" would only confirm the
petitioners’ lament that the subject executive order is only an
"adventure in partisan hostility." In the case of US v. Cyprian,95 it was
written: "A rather limited number of such classifications have
routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political
party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
64
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions
to the number included within a class, but must be of such a nature
as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations
and circumstances which are relative to the discriminatory legislation
and which are indistinguishable from those of the members of the
class must be brought under the influence of the law and treated by it
in the same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause."98 "Legislation
is not unconstitutional merely because it is not all-embracing and
does not include all the evils within its reach."99 It has been written
that a regulation challenged under the equal protection clause is not
devoid of a rational predicate simply because it happens to be
incomplete.100 In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where
the purpose can be attained in future legislations or regulations.
These cases refer to the "step by step" process.101 "With regard to
equal protection claims, a legislature does not run the risk of losing
the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably
have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored at
least three times in the assailed executive order. It must be noted
that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions
created in the past. "The equal protection clause is violated by
purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration.104 The OSG points to Section 17 of
Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate
of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly
by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President
the discretion to expand the scope of investigations of the PTC so as
to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in
the future. Such expanded mandate of the commission will still
depend on the whim and caprice of the President. If he would decide
not to include them, the section would then be meaningless. This will
only fortify the fears of the petitioners that the Executive Order No. 1
was "crafted to tailor-fit the prosecution of officials and personalities
of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause." The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of
action.
A final word
65
The issue that seems to take center stage at present is - whether or
not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent initiatives
of the legislature and the executive department, is exercising undue
interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again, this
issue has been addressed by the Court, but it seems that the present
political situation calls for it to once again explain the legal basis of its
action lest it continually be accused of being a hindrance to the
nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of
the 1987 Constitution, is vested with Judicial Power that "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 of abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have
been fertile grounds of conflict between the Supreme Court, on one
hand, and the two co-equal bodies of government, on the other.
Many times the Court has been accused of asserting superiority over
the other departments.
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: "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."107
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply making
sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after
said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said
act as void and unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation and
its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble
and worthy of admiration the purpose of an act, but if the means to
be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.108 The
Court cannot just turn a blind eye and simply let it pass. It will
continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the
66
branches of the government, it is the judiciary which is the most
interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and not
of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
Footnotes
1 Angara v. The Electoral Commission, 63 Phil. 139, 158 (1936).
2 Bernas, The 1987 Constitution of the Republic of the
Philippines; A Commentary, 1996 ed., p. xxxiv, citing Miller,
Lectures on the Constitution of the United States 64 (1893); 1
Schwartz, The Powers of Government 1 (1963).
3 Cruz, Philippine Political law, 2002 ed. p. 12.
4 Id.
5 Resolution dated August 24, 2010 consolidating G.R. No.
192935 with G.R. No. 193036, rollo, pp. 87-88.
6 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.
7 Biraogo Petition, p. 5, rollo, p. 7.
8 Salvador Laurel v. Hon. Desierto, G.R. No. 145368, April 12,
2002, citing F.R. Mechem, A Treatise On The Law of Public
Offices and Officers.
9 International Center for Transitional Justice,
<http://www.ictj.org/en/tj/138.html> visited November 20,
2010.
10Freeman, The Truth Commission and Procedural Fairness,
2006 Ed., p. 12, citing Hayner, UnspeakableTruths: Facing the
Challenge of Truth Commissions.
11International Center for Transitional Justice, supra note 9.
12Armando Doronila, Philippine Daily Inquirer, August 2, 2010.
<http://newsinfo.inquirer.net/inquirerheadlines/natio
n/view/20100802-284444/Truth-body-told-Take-no
prisoners> visited November 9, 2010.
13 Lagman Petition, pp. 50-52, rollo, pp. 58-60.
14 Rollo, pp. 111-216.
15 Otherwise known as the Administrative Code of 1987.
16 Granting Continuing Authority To The President Of The
Philippines To Reorganize The National Government.
17 Otherwise known as the General Appropriations Act of
2010.
18 OSG Consolidated Comment, p. 33, rollo, p. 153, citing Uy v.
Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001, 354
SCRA 651, 660-661.
19 Senate of the Philippines v. Ermita, G.R. No. 169777, April
20, 2006, 488 SCRA 1, 35; and Francisco v. House of
Representatives, 460 Phil. 830, 842 (2003).
20 OSG Memorandum, p. 29, rollo, p. 348.
21 G.R. No. 113105, August 19, 1994, 235 SCRA 506, 520.
22 Supra note 19, citing Pimentel Jr., v. Executive Secretary,
G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
23 OSG Memorandum, p. 30, rollo, p. 349.
24 G.R. No. 171396, May 3, 2006, 489 SCRA 160, 216-218.
25 Social Justice Society (SJS) v. Dangerous Drugs Board and
Philippine Drug Enforcement Agency, G.R. No. 157870,
67
November 3, 2008, 570 SCRA 410, 421; Tatad v. Secretary of
the Department of Energy, 346 Phil 321 (1997); De Guia v.
COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
26 G.R. 132527, July 29, 2005, 465 SCRA 47, 62.
27 84 Phil. 368, 373 (1949).
28 "(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 with a more direct and specific
interest in the questions being raised."
29 G.R. No. 174697, July 8, 2010.
30 Kilosbayan,Inc. v. Guingona, Jr., G.R. No. 113375, May 5,
1994, 232 SCRA 110, 139.
31 Biraogo Memorandum, p. 7, rollo, p. 69.
32 Id. at 6, rollo, p. 68.
33 Id. at 9, rollo, p. 71.
34 Id. at 10, rollo, p. 72.
35 Id. at 10-11, rollo pp. 72-73.
36 Lagman Memorandum, G.R. No 193036, pp. 10-11, rollo, pp.
270-271.
37 OSG Memorandum, p. 32, rollo, p. 351.
38 Id. at 33, rollo, p. 352.
39 OSG Consolidated Comment, p. 24, rollo, p. 144.
40 OSG Memorandum, pp. 38-39, rollo, pp. 357-358.
41 Citing Department of Health v. Camposano, G.R. No.
157684, April 27, 2005, 457 SCRA 438, 450.
42 Citing Evangelista v. Jarencio, No. L-27274, November 27,
1975, 68 SCRA 99, 104.
43 Citing Rodriguez v. Santos Diaz, No. L-19553, February 29,
1964, 10 SCRA 441, 445.
44 G.R. No. 166620, April 20, 2010.
45 Consolidated Comment, p. 45, rollo, p. 165.
46 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, also
cited in Banda, supra.
47 The Veterans Federation of the Philippines v. Reyes, G. R.
No. 155027, February 28, 2006, 483 SCRA 526, 564; DOTC v.
Mabalot, 428 Phil. 154, 164-165 (2002); Mondano v.
Silvosa, 97 Phil. 143 (1955).
48 OSG Memorandum, p. 56, rollo, p. 375.
49 G.R. No. 112745, October 16, 1997, 280 SCRA 713, 730.
50 TSN, September 28, 2010, pp. 205-207.
51 OSG Memorandum, p. 37, rollo, p.356.
52 G.R. 88211, September 15, 1989, 177 SCRA 688.
53 Id. at 691.
54 496 Phil. 886, 896-897 (2005).
55 Consolidated Comment, p. 48; rollo, p. 168.
56 Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.
57 Ople v. Torres, 354 Phil. 948, 967 (1998).
58 Smart Communications, Inc. et al. v. National
Telecommunications Commission, 456 Phil. 145, 156 (2003).
59 G.R. No. 96681, December 2, 1991, 204 SCRA 483.
60 Id. at 492.
61 TSN, September 28, 2010, pp. 39-44; and OSG
Memorandum, p. 67, rollo, p. 339.
62 OSG Consolidated Comment, p. 55, rollo, p. 175.
63 Id. at 56, rollo, p. 176.
64 Id.
65 G.R. No. 167711, October 10, 2008, 568 SCRA 327, 339.
66 Lagman Petition, pp. 43, 50-52, rollo, pp. 51, 50-60.
67 Lagman Memorandum, G.R. 193036, pp. 28-29, rollo, pp.
347-348.
68 Lagman Petition, p. 31, rollo, p. 39.
69 Id. at 28-29, rollo, pp. 36-37.
70 Id. at 29, rollo, p. 37.
71 OSG Memorandum, p. 88; rollo, p. 407.
72 OSG Consolidated Comment. p. 68, rollo, p. 188.
73 OSG Memorandum, pp. 90-93, rollo, pp. 409-412.
68
74 The Philippine Judges Association v. Hon. Pardo, G.R. No.
105371, November 11, 1993, 227 SCRA 703, 711.
75 Id. at 712, citing Ichong v. Hernandez, 101 Phil. 1155 (1957);
Sison, Jr. v. Ancheta, No. L-59431, July 25, 1984, 130 SCRA
654; Association of Small Landowners in the Philippines v.
Secretary of Agrarian Reform, G.R. No. 7842, July 14, 1989,
175 SCRA 343, 375.
76 Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995) cited in Am.
Jur, 2d, Vol. 16 (b), p. 302.
77 Edward Valves, Inc. v. Wake Country, 343 N.C. 426 cited in
Am. Jur. 2d, Vol. 16 (b), p. 303.
78 Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol.
16 (b), p. 303.
79 See Columbus Bd. of Ed. v. Penick, 443 US 449 cited Am. Jur.
2d, Vol. 16 (b), pp. 316-317.
80 See Lombard v. State of La., 373 US 267 cited in Am. Jur. 2d,
Vol. 16 (b), p. 316.
81 Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).
82 Cruz, Constitutional Law, 2003 ed., p. 128.
83 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16
(b), p. 367.
84 Cruz, Constitutional Law, 2003 ed., pp. 135-136.
85 No. L-25246, 59 SCRA 54, 77-78 (September 12, 1974).
86 Basa v. Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinas (FOITAF), No. L-27113, November 19,
1974, 61 SCRA 93, 110-111; Anuncension v. National Labor
Union, No. L-26097, November 29, 1977, 80 SCRA 350, 372-
373; Villegas v. Hiu Chiong Tsai Pao Ho, No. L-29646,
November 10, 1978, 86 SCRA 270, 275; Dumlao v. Comelec,
No. L-52245, January 22, 1980, 95 SCRA 392, 404; Ceniza v.
Comelec, No. L-52304, January 28, 1980, 95 SCRA 763, 772-
773; Himagan v. People, G.R. No. 113811, October 7, 1994,
237 SCRA 538; The Conference of Maritime Manning Agencies,
Inc. v. POEA, G.R. No. 114714, April 21, 1995, 243 SCRA 666,
677; JMM Promotion and Management, Inc. v. Court of
Appeals, G.R. No. 120095, August 5, 1996, 260 SCRA 319, 331–
332; and Tiu v. Court of Appeals, G.R. No. 127410, January 20,
1999, 301 SCRA 278, 288-289. See also Ichong v.
Hernandez, No. L-7995, 101 Phil. 1155 (1957); Vera v. Cuevas,
Nos. L-33693-94, May 31, 1979, 90 SCRA 379, 388;
and Tolentino v. Secretary of Finance, G.R. Nos. 115455,
101 See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A
state legislature may, consistently with the Equal Protection
Clause, address a problem one step at a time, or even select
one phase of one field and apply a remedy there, neglecting
the others. [Jeffeson v. Hackney, 406 US 535].
102 McDonald v. Board of Election Com’rs of Chicago, 394 US

115525, 115543, 115544, 115754, 115781, 115852, 115873,
and 115931, August 25, 1994, 235 SCRA 630, 684.
87 7th Whereas clause, Executive Order No. 1.
88 Cruz, Constitutional Law, 2003 ed., p. 128.
89 OSG, Memorandum, p. 89, rollo, p. 408.
90 6th Whereas clause, Executive Order No. 1
91 Lee, Handbook of Legal Maxims, 2002 Ed., p.
92 118
802 cited in Am Jur 2d, Footnote No. 9.
103 Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur.
2d, Vol. 16 (b), p. 303.
104 OSG Consolidated Comment, p. 66, rollo, p.186.
105 Lagman Memorandum, p. 30; rollo, p. 118.
106 G.R. No. 86926, October 15, 1991; 202 SCRA 680.
107 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
US 108 Cruz, Philippine Political Law, 2002 ed., pp. 12-13.

357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=u 109 Id.

s&vol=118&invol=35 <accessed on December 4, 2010>. 110 Republic v. Southside Homeowners Association, G.R. No.
93 Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405 156951, September 22, 2006.
SCRA 614, pp. 631-632; Manila Prince Hotel vs. GSIS, 335 Phil.
82, 101 (1997).
94 Id. at 632.
95 756 F. Supp. 388, N.. D. Ind., 1991, Jan 30, 1991, Crim No.

HCR 90-42;
also http://in.findacase.com/research/wfrmDocViewer.aspx/x
q/fac.19910130_0000002.NIN.htm/qx <accessed December 5,
2010>
96 McErlain v. Taylor, 207 Ind. 240 cited in Am. Jur. 2d, Vol. 16

(b), p. 367.
97 Martin v. Tollefson, 24 Wash. 2d 211 cited in Am. Jur. 2d,

Vol. 16 (b), pp. 367-368 .

98 Nixon v. Administrator of General Services, 433 US 425 cited

in Am. Jur. 2d, Vol. 16 (b), p. 371.

99 Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16

(b), p. 370.
100 Clements v. Fashing, 457 US 957. Case List No. 1; Case 3

69
EN BANC
G.R. No. 196425 July 24, 2012
PROSPERO A. PICHAY, JR., Petitioner,
vs.
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS
INVESTIGATIVE AND ADJUDICATORY DIVISION, HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary, and HON. CESAR
V. PURISIMA, in his capacity as Secretary of Finance, and as an ex-
officio member of the Monetary Board, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
This is a Petition for Certiorari and Prohibition with a prayer for the
issuance of a temporary restraining order, seeking to declare as
unconstitutional Executive Order No. 13, entitled, "Abolishing the
Presidential Anti-Graft Commission and Transferring Its Investigative,
Adjudicatory and Recommendatory Functions to the Office Of The
Deputy Executive Secretary For Legal Affairs, Office of the
President",1 and to permanently prohibit respondents from
administratively proceeding against petitioner on the strength of the
assailed executive order.
The Facts
On April 16, 2001, then President Gloria Macapagal-Arroyo issued
Executive Order No. 12 (E.O. 12) creating the Presidential Anti-Graft
Commission (PAGC) and vesting it with the power to investigate or
hear administrative cases or complaints for possible graft and
corruption, among others, against presidential appointees and to
70
submit its report and recommendations to the President. Pertinent
portions of E.O. 12 provide:
Section 4. Jurisdiction, Powers and Functions. –
(a) x x x xxx xxx
(b) The Commission, acting as a collegial body, shall have the
authority to investigate or hear administrative cases or complaints
against all presidential appointees in the government and any of its
agencies or instrumentalities xxx
xxx xxx xxx
xxx xxx xxx
Section 8. Submission of Report and Recommendations. – After
completing its investigation or hearing, the Commission en banc shall
submit its report and recommendations to the President. The report
and recommendations shall state, among others, the factual findings
and legal conclusions, as well as the penalty recommend (sic) to be
imposed or such other action that may be taken."
On November 15, 2010, President Benigno Simeon Aquino III issued
Executive Order No. 13 (E.O. 13), abolishing the PAGC and
transferring its functions to the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA), more particularly to its newly-
established Investigative and Adjudicatory Division (IAD). The full text
of the assailed executive order reads:
EXECUTIVE ORDER NO. 13
ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND
TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND
RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE
PRESIDENT
WHEREAS, this administration has a continuing mandate and
advocacy to fight and eradicate corruption in the different
departments, bureaus, offices and other government agencies and
instrumentalities;
WHEREAS, the government adopted a policy of streamlining the
government bureaucracy to promote economy and efficiency in
government;
WHEREAS, Section VII of the 1987 Philippine Constitution provides
that the President shall have control of all the executive departments,
bureaus and offices;
WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order
292 (Administrative Code of 1987) provides for the continuing
authority of the President to reorganize the administrative structure
of the Office of the President;
WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing
Authority to the President of the Philippines to Reorganize the
National Government), as amended by PD 1722, provides that the
President of the Philippines shall have continuing authority to
reorganize the administrative structure of the National Government
and may, at his discretion, create, abolish, group, consolidate, merge
or integrate entities, agencies, instrumentalities and units of the
National Government, as well as, expand, amend, change or
otherwise modify their powers, functions and authorities;
WHEREAS, Section 78 of the General Provisions of Republic Act No.
9970 (General Appropriations Act of 2010) authorizes the President of
the Philippines to direct changes in the organizational units or key
positions in any department or agency;
71
NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the
Philippines, by virtue of the powers vested in me by law, do hereby
order the following:
SECTION 1. Declaration of Policy. It is the policy of the government to
fight and eradicate graft and corruption in the different departments,
bureaus, offices and other government agencies and
instrumentalities.
The government adopted a policy of streamlining the government
bureaucracy to promote economy and efficiency in the government.
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC).
To enable the Office of the President (OP) to directly investigate graft
and corrupt cases of Presidential appointees in the Executive
Department including heads of government-owned and controlled
corporations, the
Presidential Anti-Graft Commission (PAGC) is hereby abolished and
their vital functions and other powers and functions inherent or
incidental thereto, transferred to the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA), OP in accordance with the
provisions of this Executive Order.
SECTION 3. Restructuring of the Office of the Deputy Executive
Secretary for Legal Affairs, OP. In addition to the Legal and Legislative
Divisions of the ODESLA, the Investigative and Adjudicatory Division
shall be created.
The newly created Investigative and Adjudicatory Division shall
perform powers, functions and duties mentioned in Section 2 hereof,
of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the
recommending authority to the President, thru the Executive
Secretary, for approval, adoption or modification of the report and
recommendations of the Investigative and Adjudicatory Division of
ODESLA.
SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC.
The personnel who may be affected by the abolition of the PAGC shall
be allowed to avail of the benefits provided under existing laws if
applicable. The Department of Budget and Management (DBM) is
hereby ordered to release the necessary funds for the benefits of the
employees.
SECTION 5. Winding Up of the Operation and Disposition of the
Functions, Positions, Personnel, Assets and Liabilities of PAGC. The
winding up of the operations of PAGC including the final disposition
or transfer of their functions, positions, personnel, assets and
liabilities as may be necessary, shall be in accordance with the
applicable provision(s) of the Rules and Regulations Implementing EO
72 (Rationalizing the Agencies Under or Attached to the Office of the
President) dated March 15, 2002. The winding up shall be
implemented not later than 31 December 2010.
The Office of the Executive Secretary, with the assistance of the
Department of Budget and Management, shall ensure the smooth
and efficient implementation of the dispositive actions and winding-
up of the activities of PAGC.
SECTION 6. Repealing Clause. All executive orders, rules, regulations
and other issuances or parts thereof, which are inconsistent with the
provisions of this Executive Order, are hereby revoked or modified
accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect
immediately after its publication in a newspaper of general
circulation.
72
On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed
before the IAD-ODESLA a complaint affidavit2 for grave misconduct
against petitioner Prospero A. Pichay, Jr., Chairman of the Board of
Trustees of the Local Water Utilities Administration (LWUA), as well
as the incumbent members of the LWUA Board of Trustees, namely,
Renato Velasco, Susana Dumlao Vargas, Bonifacio Mario M. Pena, Sr.
and Daniel Landingin, which arose from the purchase by the LWUA of
Four Hundred Forty-Five Thousand Three Hundred Seventy Seven
(445,377) shares of stock of Express Savings Bank, Inc.
On April 14, 2011, petitioner received an Order3 signed by Executive
Secretary Paquito N. Ochoa, Jr. requiring him and his co-respondents
to submit their respective written explanations under oath. In
compliance therewith, petitioner filed a Motion to Dismiss Ex
Abundante Ad Cautelam manifesting that a case involving the same
transaction and charge of grave misconduct entitled, "Rustico B.
Tutol, et al. v. Prospero Pichay, et al.", and docketed as OMB-C-A-10-
0426-I, is already pending before the Office of the Ombudsman.
Now alleging that no other plain, speedy and adequate remedy is
available to him in the ordinary course of law, petitioner has resorted
to the instant petition for certiorari and prohibition upon the
following grounds:
I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER
OF THE LEGISLATURE TO CREATE A PUBLIC OFFICE.
II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER
OF THE LEGISLATURE TO APPROPRIATE FUNDS.
III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER
OF CONGRESS TO DELEGATE QUASI-JUDICIAL POWERS TO
ADMINISTRATIVE AGENCIES.
 IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON
THE POWERS OF THE OMBUDSMAN.
V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE
GUARANTEE OF DUE PROCESS.
VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL
PROTECTION CLAUSE.
Our Ruling
In assailing the constitutionality of E.O. 13, petitioner asseverates that
the President is not authorized under any existing law to create the
Investigative and Adjudicatory Division, Office of the Deputy
Executive Secretary for Legal Affairs (IAD-ODESLA) and that by
creating a new, additional and distinct office tasked with quasi-
judicial functions, the President has not only usurped the powers of
congress to create a public office, appropriate funds and delegate
quasi-judicial functions to administrative agencies but has also
encroached upon the powers of the Ombudsman. Petitioner avers
that the unconstitutionality of E.O. 13 is also evident when weighed
against the due process requirement and equal protection clause
under the 1987 Constitution.
The contentions are unavailing.
The President has Continuing Authority to Reorganize the Executive
Department under E.O. 292.
Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as
the Administrative Code of 1987, vests in the President the continuing
authority to reorganize the offices under him in order to achieve
simplicity, economy and efficiency. E.O. 292 sanctions the following
actions undertaken for such purpose:
73
(1)Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating,
or merging units thereof or transferring functions from one
unit to another;
(2)Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3)Transfer any agency under the Office of the President to
any other Department or Agency as well as transfer agencies
to the Office of the President from other departments or
agencies.4
In the case of Buklod ng Kawaning EIIB v. Zamora5 the Court affirmed
that the President's authority to carry out a reorganization in any
branch or agency of the executive department is an express grant by
the legislature by virtue of E.O. 292, thus:
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of
the power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to the policy
of the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. (Emphasis supplied)
And in Domingo v. Zamora,6 the Court gave the rationale behind the
President's continuing authority in this wise:
The law grants the President this power in recognition of the
recurring need of every President to reorganize his office "to achieve
simplicity, economy and efficiency." The Office of the President is the
nerve center of the Executive Branch. To remain effective and
efficient, the Office of the President must be capable of being shaped
and reshaped by the President in the manner he deems fit to carry
out his directives and policies. After all, the Office of the President is
the command post of the President. (Emphasis supplied)
Clearly, the abolition of the PAGC and the transfer of its functions to a
division specially created within the ODESLA is properly within the
prerogative of the President under his continuing "delegated
legislative authority to reorganize" his own office pursuant to E.O.
292.
Generally, this authority to implement organizational changes is
limited to transferring either an office or a function from the Office of
the President to another Department or Agency, and the other way
around.7
Only Section 31(1) gives the President a virtual freehand in dealing
with the internal structure of the Office of the President Proper by
allowing him to take actions as extreme as abolition, consolidation or
merger of units, apart from the less drastic move of transferring
functions and offices from one unit to another. Again, in Domingo v.
Zamora8 the Court noted:
However, the President's power to reorganize the Office of the
President under Section 31 (2) and (3) of EO 292 should be
distinguished from his power to reorganize the Office of the President
Proper. Under Section 31 (1) of EO 292, the President can reorganize
the Office of the President Proper by abolishing, consolidating or
74
merging units, or by transferring functions from one unit to another.
In contrast, under Section 31 (2) and (3) of EO 292, the President's
power to reorganize offices outside the Office of the President Proper
but still within the Office of the
President is limited to merely transferring functions or agencies from
the Office of the President to Departments or Agencies, and vice
versa.
The distinction between the allowable organizational actions under
Section 31(1) on the one hand and Section 31 (2) and (3) on the other
is crucial not only as it affects employees' tenurial security but also
insofar as it touches upon the validity of the reorganization, that is,
whether the executive actions undertaken fall within the limitations
prescribed under E.O. 292. When the PAGC was created under E.O.
12, it was composed of a Chairman and two (2) Commissioners who
held the ranks of Presidential Assistant II and I, respectively,9 and was
placed directly "under the Office of the President."10 On the other
hand, the ODESLA, to which the functions of the PAGC have now been
transferred, is an office within the Office of the President
Proper.11 Since both of these offices belong to the Office of the
President Proper, the reorganization by way of abolishing the PAGC
and transferring its functions to the ODESLA is allowable under
Section 31 (1) of E.O. 292.
Petitioner, however, goes on to assert that the President went
beyond the authority granted by E.O. 292 for him to reorganize the
executive department since his issuance of E.O. 13 did not merely
involve the abolition of an office but the creation of one as well. He
argues that nowhere in the legal definition laid down by the Court in
several cases does a reorganization include the act of creating an
office.
The contention is misplaced.
The Reorganization Did not Entail the Creation of a New, Separate
and Distinct Office.
The abolition of the PAGC did not require the creation of a new,
additional and distinct office as the duties and functions that
pertained to the defunct anti-graft body were simply transferred to
the ODESLA, which is an existing office within the Office of the
President Proper. The reorganization required no more than a mere
alteration of the administrative structure of the ODESLA through the
establishment of a third division – the Investigative and Adjudicatory
Division – through which ODESLA could take on the additional
functions it has been tasked to discharge under E.O. 13. In
Canonizado v. Aguirre,12 We ruled that –
Reorganization takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them. It involves a
reduction of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions.
The Reorganization was Pursued in Good Faith.
A valid reorganization must not only be exercised through legitimate
authority but must also be pursued in good faith. A reorganization is
said to be carried out in good faith if it is done for purposes of
economy and efficiency.13 It appears in this case that the streamlining
of functions within the Office of the President Proper was pursued
with such purposes in mind.
In its Whereas clauses, E.O. 13 cites as bases for the reorganization
the policy dictates of eradicating corruption in the government and
promoting economy and efficiency in the bureaucracy. Indeed, the
economical effects of the reorganization is shown by the fact that
while Congress had initially appropriated P22 Million for the PAGC's
operation in the 2010 annual budget,14 no separate or added funding
75
of such a considerable amount was ever required after the transfer of
the PAGC functions to the IAD-ODESLA.
Apparently, the budgetary requirements that the IAD-ODESLA needed
to discharge its functions and maintain its personnel would be
sourced from the following year's appropriation for the President's
Offices under the General Appropriations Act of 2011.15 Petitioner
asseverates, however, that since Congress did not indicate the
manner by which the appropriation for the Office of the President
was to be distributed, taking therefrom the operational funds of the
IAD-ODESLA would amount to an illegal appropriation by the
President. The contention is without legal basis.
There is no usurpation of the legislative power to appropriate public
funds.
In the chief executive dwell the powers to run government. Placed
upon him is the power to recommend the budget necessary for the
operation of the Government,16 which implies that he has the
necessary authority to evaluate and determine the structure that
each government agency in the executive department would need to
operate in the most economical and efficient manner.17 Hence, the
express recognition under Section 78 of R.A. 9970 or the General
Appropriations Act of 2010 of the President’s authority to "direct
changes in the organizational units or key positions in any
department or agency." The aforecited provision, often and
consistently included in the general appropriations laws, recognizes
the extent of the President’s power to reorganize the executive
offices and agencies under him, which is, "even to the extent of
modifying and realigning appropriations for that purpose."18
And to further enable the President to run the affairs of the executive
department, he is likewise given constitutional authority to augment
any item in the General Appropriations Law using the savings in other
items of the appropriation for his office.19 In fact, he is explicitly
allowed by law to transfer any fund appropriated for the different
departments, bureaus, offices and agencies of the Executive
Department which is included in the General Appropriations Act, to
any program, project or activity of any department, bureau or office
included in the General Appropriations Act or approved after its
enactment.20
Thus, while there may be no specific amount earmarked for the IAD-
ODESLA from the total amount appropriated by Congress in the
annual budget for the Office of the President, the necessary funds for
the IAD-ODESLA may be properly sourced from the President's own
office budget without committing any illegal appropriation. After all,
there is no usurpation of the legislature's power to appropriate funds
when the President simply allocates the existing funds previously
appropriated by Congress for his office.
The IAD-ODESLA is a fact-finding and recommendatory body not
vested with quasi-judicial powers.
Petitioner next avers that the IAD-ODESLA was illegally vested with
judicial power which is reserved to the Judicial Department and, by
way of exception through an express grant by the legislature, to
administrative agencies. He points out that the name Investigative
and Adjudicatory Division is proof itself that the IAD-ODESLA wields
quasi-judicial power.
The argument is tenuous. As the OSG aptly explained in its
Comment,21 while the term "adjudicatory" appears part of its
appellation, the IAD-ODESLA cannot try and resolve cases, its
authority being limited to the conduct of investigations, preparation
of reports and submission of recommendations. E.O. 13 explicitly
states that the IAD-ODESLA shall "perform powers, functions and
duties xxx, of PAGC."22
76
Under E.O. 12, the PAGC was given the authority to "investigate or
hear administrative cases or complaints against all presidential
appointees in the government"23 and to "submit its report and
recommendations to the President."24 The IAD-ODESLA is a fact-
finding and recommendatory body to the President, not having the
power to settle controversies and adjudicate cases. As the Court ruled
in Cariño v. Commission on Human Rights,25 and later reiterated in
Biraogo v. The Philippine Truth Commission:26
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office.
The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as
such, the act of receiving evidence and arriving at factual conclusions
in a controversy must be accompanied by the authority of applying
the law to the factual conclusions to the end that the controversy
may be decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be provided by
law.
The President's authority to issue E.O. 13 and constitute the IAD-
ODESLA as his fact-finding investigator cannot be doubted. After all,
as Chief Executive, he is granted full control over the Executive
Department to ensure the enforcement of the laws. Section 17,
Article VII of the Constitution provides:
Section 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed.
The obligation to see to it that laws are faithfully executed
necessitates the corresponding power in the President to conduct
investigations into the conduct of officials and employees in the
executive department.27
The IAD-ODESLA does not encroach upon the powers and duties of
the Ombudsman.
Contrary to petitioner's contention, the IAD-ODESLA did not encroach
upon the Ombudsman's primary jurisdiction when it took cognizance
of the complaint affidavit filed against him notwithstanding the
earlier filing of criminal and administrative cases involving the same
charges and allegations before the Office of the Ombudsman. The
primary jurisdiction of the Ombudsman to investigate and prosecute
cases refers to criminal cases cognizable by the Sandiganbayan and
not to administrative cases. It is only in the exercise of its primary
jurisdiction that the Ombudsman may, at any time, take over the
investigation being conducted by another investigatory agency.
Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of 1989,
empowers the Ombudsman to –
(1)Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. (Emphasis
supplied)
Since the case filed before the IAD-ODESLA is an administrative
disciplinary case for grave misconduct, petitioner may not invoke the
primary jurisdiction of the Ombudsman to prevent the IAD-ODESLA
from proceeding with its investigation. In any event, the
Ombudsman's authority to investigate both elective and appointive
officials in the government, extensive as it may be, is by no means
exclusive. It is shared with other similarly authorized government
agencies.28
77
While the Ombudsman's function goes into the determination of the
existence of probable cause and the adjudication of the merits of a
criminal accusation, the investigative authority of the IAD- ODESLA is
limited to that of a fact-finding investigator whose determinations
and recommendations remain so until acted upon by the President.
As such, it commits no usurpation of the Ombudsman's constitutional
duties.
Executive Order No. 13 Does Not Violate Petitioner's Right to Due
Process and the Equal Protection of the Laws.
Petitioner goes on to assail E.O. 13 as violative of the equal protection
clause pointing to the arbitrariness of limiting the IAD-ODESLA's
investigation only to presidential appointees occupying upper-level
positions in the government. The equal protection of the laws is a
guaranty against any form of undue favoritism or hostility from the
government.29 It is embraced under the due process concept and
simply requires that, in the application of the law, "all persons or
things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed."30 The equal protection
clause, however, is not absolute but subject to reasonable
classification so that aggrupations bearing substantial distinctions
may be treated differently from each other. This we ruled in Farinas v.
Executive Secretary,31 wherein we further stated that –
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons
within such class, and reasonable grounds exist for making a
distinction between those who fall within such class and those who
do not. (Emphasis supplied)
Presidential appointees come under the direct disciplining authority
of the President. This proceeds from the well settled principle that, in
the absence of a contrary law, the power to remove or to discipline is
lodged in the same authority on which the power to appoint is
vested.32 Having the power to remove and/or discipline presidential
appointees, the President has the corollary authority to investigate
such public officials and look into their conduct in office.33 Petitioner
is a presidential appointee occupying the high-level position of
Chairman of the LWUA. Necessarily, he comes under the disciplinary
jurisdiction of the President, who is well within his right to order an
investigation into matters that require his informed decision.
There are substantial distinctions that set apart presidential
appointees occupying upper-level positions in government from non-
presidential appointees and those that occupy the lower positions in
government. In Salumbides v. Office of the Ombudsman,34 we had
ruled extensively on the substantial distinctions that exist between
elective and appointive public officials, thus:
Substantial distinctions clearly exist between elective officials and
appointive officials. The former occupy their office by virtue of the
mandate of the electorate. They are elected to an office for a definite
term and may be removed therefrom only upon stringent conditions.
On the other hand, appointive officials hold their office by virtue of
their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the
appointing authority.
xxxx
78
An election is the embodiment of the popular will, perhaps the purest
expression of the sovereign power of the people.1âwphi1 It involves
the choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their
constituents for a definite term, x x x complete deference is accorded
to the will of the electorate that they be served by such officials until
the end of the term for which they were elected. In contrast, there is
no such expectation insofar as appointed officials are concerned.
(Emphasis supplied)
Also, contrary to petitioner's assertions, his right to due process was
not violated when the IAD-ODESLA took cognizance of the
administrative complaint against him since he was given sufficient
opportunity to oppose the formal complaint filed by Secretary
Purisima. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer
the accusations against him constitute the minimum requirements of
due process,35 which simply means having the opportunity to explain
one’s side.36 Hence, as long as petitioner was given the opportunity to
explain his side and present evidence, the requirements of due
process are satisfactorily complied with because what the law abhors
is an absolute lack of opportunity to be heard.37 The records show
that petitioner was issued an Order requiring him to submit his
written explanation under oath with respect to the charge of grave
misconduct filed against him. His own failure to submit his
explanation despite notice defeats his subsequent claim of denial of
due process.
Finally, petitioner doubts that the IAD-ODESLA can lawfully perform
its duties as an impartial tribunal, contending that both the IAD-
ODESLA and respondent Secretary Purisima are connected to the
President. The mere suspicion of partiality will not suffice to
invalidate the actions of the IAD-ODESLA. Mere allegation is not
equivalent to proof. Bias and partiality
cannot be presumed.38 Petitioner must present substantial proof to 9 Section 2, E.O. 12.
show that the lAD-ODES LA had unjustifiably sided against him in the 10 Section 1, E.O. 12.
conduct of the investigation. No such evidence has been presented as 11 Section 22, Chapter 8, Book III, The Administrative Code of

to defeat the presumption of regularity m the performance of the 1987.

fact-finding investigator's duties. The assertion, therefore, deserves 12 G.R. No. 133132, January 25, 2000, 323 SCRA 312.

scant consideration. 13 Malaria Employees and Workers Association of the

Philippines, Inc. (MEWAP) v. Romulo, G.R. No. 160093, July 31,

Every law has in its favor the presumption of constitutionality, and to 2007, 528 SCRA 673, 683.
justify its nullification, there must be a clear and unequivocal breach 14 General Appropriations Act of 2010 (R.A. No. 9970).

of the Constitution, not a doubtful and argumentative 15 General Appropriations Act of 2011 (R.A. No. 10147).

one.39 Petitioner has failed to discharge the burden of proving the 16 Section 25 (1), Article VI, 1987 Constitution – The Congress

illegality of E.O. 13, which IS indubitably a valid exercise of the may not increase the appropriations recommended by the
President's continuing authority to reorganize the Office of the President for the operation of the Government as specified in
President. the budget. x x x.
17 Bagaoisan v. National Tobacco Administration, G.R. No.

WHEREFORE, premises considered, the petition IS hereby DISMISSED. 152845, August 5, 2003, 408 SCRA 337, 348.
18 Banda v. Ermita, G.R. No. 166620, April 20, 2010, 618 SCRA

SO ORDERED. 488, 513.

19 Section 25 (5), Article VI, 1987 Constitution – No law shall be

ESTELA M. PERLAS-BERNABE passed authorizing any transfer of appropriations; however,

Associate justice the President, xxx may, by law, be authorized to augment any
item in the general appropriations law for their respective
Footnotes offices from savings in other items of their respective
* On official leave. appropriations.
** On leave. 20 Section 44, P.D. 1177 (Budget Reform Decree of 1977).
*** On official business. 21 Rollo, p. 86.
**** On leave. 22 Section 3, E.O. 13.
1 Rollo, pp. 51-53. 23 Section 4(b), E.O. 12.
2 Docketed as OP-DC Case No. 11-D-008. 24 Section 8, E.O. 12.
3 Rollo, p. 54 25 G.R. No. 96681, December 2, 1991, 204 SCRA 483, 492.
4 Section 31, Chapter 10, Book III of E.O. No. 292. 26 G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA
5 G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, 729.
78, 160.
6 G.R. No. 142283, February 6, 2003, 397 SCRA 56. 27 Department of Health v. Camposano, G.R. No. 157684, April
7 Paragraphs (2) and (3) of Section 31.
27, 2005, 457 SCRA 438, 450; Biraogo v. Philippine Truth
8 G.R. No. 142283, February 6, 2003, 397 SCRA 56.

79
 Commission, G.R. Nos. 192935 and 193036, December 7, EN BANC
2010, 637 SCRA 78, 160.
28 Flores v. Montemayor, G.R. No. 170146, June 8, 2011, 651 G.R. No. 166052 August 29, 2007
SCRA 396, 404.
29 Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 ANAK MINDANAO PARTY-LIST GROUP, as represented by Rep. Mujiv
and 193036, December 7, 2010, 637 SCRA 78, 166. S. Hataman, and MAMALO DESCENDANTS ORGANIZATION, INC., as
30 Ichong v. Hernandez, 101 Phil. 1155 (1957), cited in Fariñas represented by its Chairman Romy Pardi, Petitioners,
v. Executive Secretary, G.R. No. 147387, December 10, 2003, vs.
417 SCRA 503, 525. THE EXECUTIVE SECRETARY, THE HON. EDUARDO R. ERMITA, and
31 G.R. No. 147387, December 10, 2003, 417 SCRA 503. THE SECRETARY OF AGRARIAN/LAND REFORM, THE HON. RENE C.
32 Ambas v. Buenaceda, G.R. No. 95244, September 4, 1991, VILLA, Respondents.
201 SCRA 308, 314, citing Lacanilao v. De Leon, No. L-76532,
January 26, 1987, 147 SCRA 286, 298; Aguirre, Jr. v. De Castro, DECISION
G.R. No. 127631, December 17, 1999, 321 SCRA 95, 104.
33 See Garcia v. Pajaro, G.R. No. 141149, July 5, 2002, 384 SCRA CARPIO MORALES, J.:
122, 135.
34 G.R. No. 180917, April 23, 2010, 619 SCRA 313. Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo
35 Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA Descendants Organization, Inc. (MDOI) assail the constitutionality of
29. Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the
36 Libres v. NLRC, G.R. No. 12373, May 28, 1999, 307 SCRA 675. present Petition for Certiorari and Prohibition with prayer for
37 Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, injunctive relief.
405 SCRA 264, 269; AMA Computer College-East Rizal, et al. v.
Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633. E.O. No. 364, which President Gloria Macapagal-Arroyo issued on
38 Casimiro v. Tandog, G.R. No. 146137, June 08,2005,459 September 27, 2004, reads:
SCRA 624,631.
39 Lacson v. Executive Secretary, G .R. No. 128096, January 20, EXECUTIVE ORDER NO. 364
1999, 301 SCRA 298, 311.
TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE
DEPARTMENT OF LAND REFORM

WHEREAS, one of the five reform packages of the Arroyo

administration is Social Justice and Basic [N]eeds;

Case List No. 1; Case 4 WHEREAS, one of the five anti-poverty measures for social justice is
asset reform;
80
WHEREAS, asset reforms covers [sic] agrarian reform, urban land
reform, and ancestral domain reform;
WHEREAS, urban land reform is a concern of the Presidential
Commission [for] the Urban Poor (PCUP) and ancestral domain
reform is a concern of the National Commission on Indigenous
Peoples (NCIP);
WHEREAS, another of the five reform packages of the Arroyo
administration is Anti-Corruption and Good Government;
WHEREAS, one of the Good Government reforms of the Arroyo
administration is rationalizing the bureaucracy by consolidating
related functions into one department;
WHEREAS, under law and jurisprudence, the President of the
Philippines has broad powers to reorganize the offices under her
supervision and control;
NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers
vested in me as President of the Republic of the Philippines, do
hereby order:
SECTION 1. The Department of Agrarian Reform is hereby
transformed into the Department of Land Reform. It shall be
responsible for all land reform in the country, including agrarian
reform, urban land reform, and ancestral domain reform.
SECTION 2. The PCUP is hereby placed under the supervision and
control of the Department of Land Reform. The Chairman of the PCUP
shall be ex-officio Undersecretary of the Department of Land Reform
for Urban Land Reform.
SECTION 3. The NCIP is hereby placed under the supervision and
control of the Department of Land Reform. The Chairman of the NCIP
81
shall be ex-officio Undersecretary of the Department of Land Reform
for Ancestral Domain Reform.
SECTION 4. The PCUP and the NCIP shall have access to the services
provided by the Department’s Finance, Management and
Administrative Office; Policy, Planning and Legal Affairs Office, Field
Operations and Support Services Office, and all other offices of the
Department of Land Reform.
SECTION 5. All previous issuances that conflict with this Executive
Order are hereby repealed or modified accordingly.
SECTION 6. This Executive Order takes effect immediately. (Emphasis
and underscoring supplied)
E.O. No. 379, which amended E.O. No. 364 a month later or on
October 26, 2004, reads:
EXECUTIVE ORDER NO. 379
AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING
THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT
OF LAND REFORM
WHEREAS, Republic Act No. 8371 created the National Commission
on Indigenous Peoples;
WHEREAS, pursuant to the Administrative Code of 1987, the
President has the continuing authority to reorganize the
administrative structure of the National Government.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by
the Constitution and existing laws, do hereby order:
Section 1. Amending Section 3 of Executive Order No. 364. Section 3
of Executive Order No. 364, dated September 27, 2004 shall now read
as follows:
"Section 3. The National Commission on Indigenous Peoples (NCIP)
shall be an attached agency of the Department of Land Reform."
Section 2. Compensation. The Chairperson shall suffer no diminution
in rank and salary.
Section 3. Repealing Clause. All executive issuances, rules and
regulations or parts thereof which are inconsistent with this Executive
Order are hereby revoked, amended or modified accordingly.
Section 4. Effectivity. This Executive Order shall take effect
immediately. (Emphasis and underscoring in the original)
Petitioners contend that the two presidential issuances are
unconstitutional for violating:
- THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF
POWERS AND OF THE RULE OF LAW[;]
- THE CONSTITUTIONAL SCHEME AND POLICIES FOR
AGRARIAN REFORM, URBAN LAND REFORM, INDIGENOUS
PEOPLES’ RIGHTS AND ANCESTRAL DOMAIN[; AND]
- THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR
ORGANIZATIONS TO EFFECTIVE AND REASONABLE
PARTICIPATION IN DECISION-MAKING, INCLUDING THROUGH
ADEQUATE CONSULTATION[.]1
By Resolution of December 6, 2005, this Court gave due course to the
Petition and required the submission of memoranda, with which
82
petitioners and respondents complied on March 24, 2006 and April
11, 2006, respectively.
The issue on the transformation of the Department of Agrarian
Reform (DAR) into the Department of Land Reform (DLR) became
moot and academic, however, the department having reverted to its
former name by virtue of E.O. No. 4562 which was issued on August
23, 2005.
The Court is thus left with the sole issue of the legality of placing the
Presidential Commission3 for the Urban Poor (PCUP) under the
supervision and control of the DAR, and the National Commission on
Indigenous Peoples (NCIP) under the DAR as an attached agency.
Before inquiring into the validity of the reorganization, petitioners’
locus standi or legal standing, inter alia,4 becomes a preliminary
question.
The Office of the Solicitor General (OSG), on behalf of respondents,
concedes that AMIN5 has the requisite legal standing to file this suit
as member6 of Congress.
Petitioners find it impermissible for the Executive to intrude into the
domain of the Legislature. They posit that 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.7 They add that 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.8
Indeed, a member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by
the Constitution in his office.9
The OSG questions, however, the standing of MDOI, a registered
people’s organization of Teduray and Lambangian tribesfolk of
(North) Upi and South Upi in the province of Maguindanao.
As co-petitioner, MDOI alleges that it is concerned with the negative
impact of NCIP’s becoming an attached agency of the DAR on the
processing of ancestral domain claims. It fears that transferring the
NCIP to the DAR would affect the processing of ancestral domain
claims filed by its members.
Locus standi or legal standing has been defined as a personal and
substantial interest in a 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.10
It has been held that a party who assails the constitutionality of a
statute must have a direct and personal interest. It must show not
only that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it
is about to be subjected to some burdens or penalties by reason of
the statute or act complained of.11
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some actual
or threatened injury as a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the challenged action,
and (3) the injury is likely to be redressed by a favorable action.12
83
An examination of MDOI’s nebulous claims of "negative impact" and
"probable setbacks"13 shows that they are too abstract to be
considered judicially cognizable. And the line of causation it proffers
between the challenged action and alleged injury is too attenuated.
Vague propositions that the implementation of the assailed orders
will work injustice and violate the rights of its members cannot clothe
MDOI with the requisite standing. Neither would its status as a
"people’s organization" vest it with the legal standing to assail the
validity of the executive orders.14
La Bugal-B’laan Tribal Association, Inc. v. Ramos,15 which MDOI cites
in support of its claim to legal standing, is inapplicable as it is not
similarly situated with the therein petitioners who alleged personal
and substantial injury resulting from the mining activities permitted
by the assailed statute. And so is Cruz v. Secretary of Environment and
Natural Resources,16 for the indigenous peoples’ leaders and
organizations were not the petitioners therein, who necessarily had
to satisfy the locus standi requirement, but were intervenors who
sought and were allowed to be impleaded, not to assail but to defend
the constitutionality of the statute.
Moreover, MDOI raises no issue of transcendental importance to
justify a relaxation of the rule on legal standing. To be accorded
standing on the ground of transcendental importance, Senate of the
Philippines v. Ermita17 requires that the following elements must be
established: (1) the public 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 government, and (3) the lack of any
other party with a more direct and specific interest in raising the
questions being raised. The presence of these elements MDOI failed
to establish, much less allege.
Francisco, Jr. v. Fernando18 more specifically declares that the
transcendental importance of the issues raised must relate to the
merits of the petition.
This Court, not being a venue for the ventilation of generalized
grievances, must thus deny adjudication of the matters raised by
MDOI.
Now, on AMIN’s position. AMIN charges the Executive Department
with transgression of the principle of separation of powers.
Under the principle of separation of powers, Congress, the President,
and the Judiciary may not encroach on fields allocated to each of
them. The legislature is generally limited to the enactment of laws,
the executive to the enforcement of laws, and the judiciary to their
interpretation and application to cases and controversies. The
principle presupposes mutual respect by and between the executive,
legislative and judicial departments of the government and calls for
them to be left alone to discharge their duties as they see fit.19
AMIN contends that since the DAR, PCUP and NCIP were created by
statutes,20 they can only be transformed, merged or attached by
statutes, not by mere executive orders.
While AMIN concedes that the executive power is vested in the
President21 who, as Chief Executive, holds the power of control of all
the executive departments, bureaus, and offices,22 it posits that this
broad power of control including the power to reorganize is qualified
and limited, for it cannot be exercised in a manner contrary to law,
citing the constitutional duty23 of the President to ensure that the
laws, including those creating the agencies, be faithfully executed.
AMIN cites the naming of the PCUP as a presidential commission to
be clearly an extension of the President, and the creation of the NCIP
as an "independent agency under the Office of the President."24 It
84
thus argues that since the legislature had seen fit to create these
agencies at separate times and with distinct mandates, the President
should respect that legislative disposition.
In fine, AMIN contends that any reorganization of these
administrative agencies should be the subject of a statute.
AMIN’s position fails to impress.
The Constitution confers, by express provision, the power of control
over executive departments, bureaus and offices in the President
alone. And it lays down a limitation on the legislative power.
The line that delineates the Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution,
to make laws, and to alter and repeal them." The Constitution, as the
will of the people in their original, sovereign and unlimited capacity,
has vested this power in the Congress of the Philippines. The grant of
legislative power to Congress is broad, general and comprehensive.
The legislative body possesses plenary power for all purposes of civil
government. Any power, deemed to be legislative by usage and
tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power
embraces all subjects and extends to matters of general concern or
common interest.
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 the laws into practical operation and
enforcing their due observance.
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus
and offices. This means that he has the authority to assume directly
the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of
control, the President also has the duty of supervising and
enforcement of laws for the maintenance of general peace and public
order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties
effectively.25 (Italics omitted, underscoring supplied)
The Constitution’s express grant of the power of control in the
President justifies an executive action to carry out reorganization
measures under a broad authority of law.26
In enacting a statute, the legislature is presumed to have deliberated
with full knowledge of all existing laws and jurisprudence on the
subject.27 It is thus reasonable to conclude that in passing a statute
which places an agency under the Office of the President, it was in
accordance with existing laws and jurisprudence on the President’s
power to reorganize.
In establishing an executive department, bureau or office, the
legislature necessarily ordains an executive agency’s position in the
scheme of administrative structure. Such determination is
primary,28 but subject to the President’s continuing authority to
reorganize the administrative structure. As far as bureaus, agencies or
offices in the executive department are concerned, the power of
control may justify the President to deactivate the functions of a
particular office. Or a law may expressly grant the President the
broad authority to carry out reorganization measures.29 The
Administrative Code of 1987 is one such law:30
SEC. 30. Functions of Agencies under the Office of the President.–
Agencies under the Office of the President shall continue to operate
85
and function in accordance with their respective charters or laws
creating them, except as otherwise provided in this Code or by law.
SEC. 31. Continuing Authority of the President to Reorganize his
Office.– The President, subject to the policy in the Executive
Office and in order to achieve simplicity, economy and
efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating,
or merging units thereof or transferring functions from one
unit to another;
(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments or
agencies.31 (Italics in the original; emphasis and underscoring
supplied)
In carrying out the laws into practical operation, the President is best
equipped to assess whether an executive agency ought to continue
operating in accordance with its charter or the law creating it. This is
not to say that the legislature is incapable of making a similar
assessment and appropriate action within its plenary power. The
Administrative Code of 1987 merely underscores the need to provide
the President with suitable solutions to situations on hand to meet
the exigencies of the service that may call for the exercise of the
power of control.
x x x The law grants the President this power in recognition of the
recurring need of every President to reorganize his office "to achieve
simplicity, economy and efficiency." The Office of the President is the
nerve center of the Executive Branch. To remain effective and
efficient, the Office of the President must be capable of being shaped
and reshaped by the President in the manner he deems fit to carry
out his directives and policies. After all, the Office of the President is
the command post of the President. This is the rationale behind the
President’s continuing authority to reorganize the administrative
structure of the Office of the President.32
The Office of the President consists of the Office of the President
proper and the agencies under it.33 It is not disputed that PCUP and
NCIP were formed as agencies under the Office of the
President.34 The "Agencies under the Office of the President" refer to
those offices placed under the chairmanship of the President, those
under the supervision and control of the President, those under the
administrative supervision of the Office of the President, those
attached to the Office for policy and program coordination, and those
that are not placed by law or order creating them under any special
department.35
As thus provided by law, the President may transfer any agency under
the Office of the President to any other department or agency,
subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency. Gauged against these
guidelines,36 the challenged executive orders may not be said to have
been issued with grave abuse of discretion or in violation of the rule
of law.
The references in E.O. 364 to asset reform as an anti-poverty measure
for social justice and to rationalization of the bureaucracy in
86
furtherance of good government37 encapsulate a portion of the
existing "policy in the Executive Office." As averred by the OSG, the
President saw it fit to streamline the agencies so as not to hinder the
delivery of crucial social reforms.38
The consolidation of functions in E.O. 364 aims to attain the
objectives of "simplicity, economy and efficiency" as gathered from
the provision granting PCUP and NCIP access to the range of services
provided by the DAR’s technical offices and support systems.39
The characterization of the NCIP as an independent agency under the
Office of the President does not remove said body from the
President’s control and supervision with respect to its performance of
administrative functions. So it has been opined:
That Congress did not intend to place the NCIP under the control of
the President in all instances is evident in the IPRA itself, which
provides that the decisions of the NCIP in the exercise of its quasi-
judicial functions shall be appealable to the Court of Appeals, like
those of the National Labor Relations Commission (NLRC) and the
Securities and Exchange Commission (SEC). Nevertheless, the
NCIP, although independent to a certain degree, was placed by
Congress "under the office of the President" and, as such, is still
subject to the President’s power of control and supervision granted
under Section 17, Article VII of the Constitution with respect to its
performance of administrative functions[.]40 (Underscoring supplied)
In transferring the NCIP to the DAR as an attached agency, the
President effectively tempered the exercise of presidential authority
and considerably recognized that degree of independence.
The Administrative Code of 1987 categorizes administrative
relationships into (1) supervision and control, (2) administrative
supervision, and (3) attachment.41 With respect to the third category,
it has been held that an attached agency has a larger measure of
independence from the Department to which it is attached than one
which is under departmental supervision and control or
administrative supervision. This is borne out by the "lateral
relationship" between the Department and the attached agency. The
attachment is merely for "policy and program
42
coordination." Indeed, the essential autonomous character of a
board is not negated by its attachment to a commission.43
AMIN argues, however, that there is an anachronism of sorts because
there can be no policy and program coordination between
conceptually different areas of reform. It claims that the new
framework subsuming agrarian reform, urban land reform and
ancestral domain reform is fundamentally incoherent in view of the
widely different contexts.44 And it posits that it is a substantive
transformation or reorientation that runs contrary to the
constitutional scheme and policies.
AMIN goes on to proffer the concept of "ordering the law"45 which, so
it alleges, can be said of the Constitution’s distinct treatment of these
three areas, as reflected in separate provisions in different parts of
the Constitution.46 It argues that the Constitution did not intend an
over-arching concept of agrarian reform to encompass the two other
areas, and that how the law is ordered in a certain way should not be
undermined by mere executive orders in the guise of administrative
efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social
justice is not something implausible or unlikely.47 Their interlocking
nature cuts across labels and works against a rigid pigeonholing of
executive tasks among the members of the President’s official family.
Notably, the Constitution inhibited from identifying and
compartmentalizing the composition of the Cabinet. In vesting
87
executive power in one person rather than in a plural executive, the
evident intention was to invest the power holder with energy.48
AMIN takes premium on the severed treatment of these reform areas
in marked provisions of the Constitution. It is a precept, however,
that inferences drawn from title, chapter or section headings are
entitled to very little weight.49 And so must reliance on sub-
headings,50 or the lack thereof, to support a strained deduction be
given the weight of helium.
Secondary aids may be consulted to remove, not to create
doubt.51 AMIN’s thesis unsettles, more than settles the order of
things in construing the Constitution. Its interpretation fails to clearly
establish that the so-called "ordering" or arrangement of provisions in
the Constitution was consciously adopted to imply a signification in
terms of government hierarchy from where a constitutional mandate
can per se be derived or asserted. It fails to demonstrate that the
"ordering" or layout was not simply a matter of style in constitutional
drafting but one of intention in government structuring. With its
inherent ambiguity, the proposed interpretation cannot be made a
basis for declaring a law or governmental act unconstitutional.
A law has in its favor the presumption of constitutionality. For it to be
nullified, it must be shown that there is a clear and unequivocal
breach of the Constitution. The ground for nullity must be clear and
beyond reasonable doubt.52 Any reasonable doubt should, following
the universal rule of legal hermeneutics, be resolved in favor of the
constitutionality of a law.53
Ople v. Torres54 on which AMIN relies is unavailing. In that case, an
administrative order involved a system of identification that required
a "delicate adjustment of various contending state policies" properly
lodged in the legislative arena. It was declared unconstitutional for
dealing with a subject that should be covered by law and for violating
the right to privacy.
In the present case, AMIN glaringly failed to show how the
reorganization by executive fiat would hamper the exercise of
citizen’s rights and privileges. It rested on the ambiguous conclusion
that the reorganization jeopardizes economic, social and cultural
rights. It intimated, without expounding, that the agendum behind
the issuances is to weaken the indigenous peoples’ rights in favor of
the mining industry. And it raised concerns about the possible
retrogression in DAR’s performance as the added workload may
impede the implementation of the comprehensive agrarian reform
program.lavvphil
AMIN has not shown, however, that by placing the NCIP as an
attached agency of the DAR, the President altered the nature and
dynamics of the jurisdiction and adjudicatory functions of the NCIP
concerning all claims and disputes involving rights of indigenous
cultural communities and
indigenous peoples. Nor has it been shown, nay alleged, that the
reorganization was made in bad faith.55
As for the other arguments raised by AMIN which pertain to the
wisdom or soundness of the executive decision, the Court finds it
unnecessary to pass upon them. The raging debate on the most fitting
framework in the delivery of social services is endless in the political
arena. It is not the business of this Court to join in the fray. Courts
have no judicial power to review cases involving political questions
and, as a rule, will desist from taking cognizance of speculative or
hypothetical cases, advisory opinions and cases that have become
moot.56
Finally, a word on the last ground proffered for declaring the
unconstitutionality of the assailed issuances ─ that they violate
Section 16, Article XIII of the Constitution57 on the people’s right to
participate in decision-making through adequate consultation
mechanisms.
88
The framers of the Constitution recognized that the consultation
mechanisms were already operating without the State’s action by
law, such that the role of the State would be mere facilitation, not
necessarily creation of these consultation mechanisms. The State
provides the support, but eventually it is the people, properly
organized in their associations, who can assert the right and pursue
the objective. Penalty for failure on the part of the government to
consult could only be reflected in the ballot box and would not nullify
government action.58
WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and
379 issued on September 27, 2004 and October 26, 2004,
respectively, are declared not unconstitutional.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Footnotes
1 Rollo, p. 6.
2 Entitled "RENAMING THE DEPARTMENT OF LAND REFORM
BACK TO DEPARTMENT OF AGRARIAN REFORM" which
declared that agrarian reform "goes beyond just land reform
but includes the totality of all factors and support services
designed to lift the economic status of the beneficiaries."
3 Formerly "Committee" until modified by Memorandum
Order No. 68 issued on January 22, 1987.
4 As there is no disagreement between the parties over the
rest of the requisites for a valid exercise of judicial review,
discussion on the same shall be unnecessary, as deemed by
the Court. Vide Pimentel, Jr. v. Aguirre, G.R. No. 132988, July
19, 2000, 336 SCRA 201, 213.
5 Anak Mindanao is a registered party-list group with one seat
in the House of Representatives occupied by Rep. Mujiv S.
Hataman whose constituency includes indigenous peoples
(Lumads), peasants and urban poor in Mindanao.
6 Vide discussion in Senate of the Philippines v. Ermita, G.R.
No. 169777, July 14, 2006, 495 SCRA 170, for a discussion on
the entitlement of a party-list organization to participate in
the legislative process vis-à-vis the intertwining rights of its
representative/s.
7 Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994, 235
SCRA 506.
8 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No.
158088, July 6, 2005, 462 SCRA 622.
9 Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307
(2000).
10 Francisco, Jr. v. The House of Representatives, 460 Phil. 830,
893 (2003).
11 Vide Agan, Jr. v. Phil.International Air Terminals Co., Inc.,
450 Phil 744 (2003).
12 Vide Telecom and Broadcast Attys. of the Phils., Inc. v.
COMELEC, 352 Phil. 153, 168 (1998); vide also Lozada v.
Comelec, 205 Phil. 283 (1983) on the need to establish
concrete injury.
13 Rollo, pp. 5-6.
14 Vide Sanlakas v. Executive Secretary, 466 Phil. 482, 508
(2004) citing Kilosbayan v. Morato, G.R. No. 118910,
November 16, 1995, 250 SCRA 130.
15 465 Phil. 860 (2004).
16 400 Phil. 904 (2000).
17 G.R. No. 169777, April 20, 2006, 488 SCRA 1.
89
18 G.R. No. 166501, November 16, 2006, 507 SCRA 173.
19 Vide Atitiw v. Zamora, G.R. No. 143374, September 30,
2005, 471 SCRA 329, 345-346.
20 The DAR was created by Republic Act No. 6389 (1971);
the PCUP by Executive Order No. 82 (1986) as modified by
Memorandum Order No. 68 (1987) in Pres. Aquino’s exercise
of legislative powers under Proclamation No. 3, and Republic
Act No. 7279 (1992); the NCIP by Republic Act No. 8371
(1997).
21 Constitution, Art. VII, Sec. 1.
22 Id., Art. VII, Sec. 17.
23 Ibid.
24 Republic Act No. 8371 (1997), vide Sec. 40.
25 Ople v. Torres, 354 Phil. 948, 966-968 (1998).
26 Bagaoisan v. National Tobacco Administration, 455 Phil. 761
(2003).
27 Didipio Earth-Savers’ Multi-Purpose Association, Inc.
(DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485
SCRA 586.
28 Vide Eugenio v. Civil Service Commission, 312 Phil. 1145,
1152 (1995) which quotes Am Jur 2d on Public Officers and
Employees, viz: "Except for such offices as are created by the
Constitution, the creation of public offices is primarily a
legislative function. In so far [sic] as the legislative power in
this respect is not restricted by constitutional provisions, it is
supreme, and the legislature may decide for itself what offices
are suitable, necessary or convenient."
29 Vide Buklod ng Kawaning EIIB v. Hon. Sec. Zamora, 413 Phil.
281, 291 (2001).
30 Id. at 294.
31 Executive Order No. 292 (1987), Book III, Chapter 10.
32 Domingo v. Hon. Zamora, 445 Phil. 7, 13 (2003).
33 Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 21.
34 Vide Executive Order No. 82 (1986), Sec. 1; Republic Act No.
8371 (1997), Sec. 40.
35 Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 23.
The President shall, by executive order, assign offices and
agencies not otherwise assigned by law to any department, or
indicate to which department a government corporation or
board may be attached. (Id., Book IV, Chapter 1. Sec. 5)
36 Bagaoisan v. National Tobacco Administration, supra at 776,
adds that the numbered paragraphs are not in the nature of
provisos that unduly limit the aim and scope of the grant to
the President of the power to reorganize but are to be viewed
in consonance therewith.
37 Executive Order No. 364 (2004), perambulatory clauses.
38 Rollo, p. 130.
39 Executive Order No. 364 (2004), Sec. 4 & perambulatory
clauses.
40 Separate Opinion of Justice Santiago M. Kapunan in Cruz v.
Secretary of Environment and Natural Resources, supra at
1087-1088.
41 Executive Order No. 292 (1987), Book IV, Chapter 7, Sec. 38.
42 Beja, Sr. v. Court of Appeals, G.R. No. 97149, March 31,
1992, 207 SCRA 689.
43 Eugenio v. Civil Service Commission, supra at 1155.
44 Rollo, Memorandum for Petitioners, pp. 85, 99. Particularly
between agrarian reform and ancestral domain, (rural-based)
on the one hand, and urban land reform (urban-based), on the
other hand; and between agricultural land (DAR’s concern)
and non-agricultural land (concern of PCUP and NCIP, the
latter dealing mostly with timber & forest), citing Luz Farms v.
Secretary of the Department of Agrarian Reform, G.R. No.
86889, December 4, 1990, 192 SCRA 51.
45 Id. at 99-100 citing Waller, AO, An Introduction to Law, 7th
Ed. (1995), p. 57. Petitioners attributed the elaboration of the
concept to Louis Waller who stated that the modern system of
ordering involves an understanding of certain "thought
devices" with their appropriate names, which lawyers
manufactured in the process of creating the law. The function
90
of all legal concepts is to enable discussion about the
regulation of human behavior to be carried on in a sensible
fashion. And new thinking may produce new classifications of
legal rules to replace wholly or in part those which today seem
so firmly established. (Underscoring supplied).
46 On Agrarian Reform – Art. XIII, Secs. 4-8. On Urban Land
Reform – Art. XIII, Secs. 9-10; On Indigenous People’s Rights –
Art. XIII, Sec. 6; Art. II, Sec. 22; Art. XII, Sec. 5; Art. XIV, Sec. 17;
Art. XVI, Sec. 12. Also, Art. VI, Sec. 5 (2) on the erstwhile
system of sectoral representation providing for separate
representation of peasant, urban poor and indigenous cultural
communities.
47 E.g., Constitution, Art. XIII, Sec. 6 which reads: "The State
shall apply the principles of agrarian reform or stewardship,
whenever applicable in accordance with law, in the disposition
or utilization of other natural resources, including lands of the
public domain under lease or concession suitable to
agriculture, subject to prior rights, homestead rights of small
settlers, and the rights of indigenous communities to their
ancestral lands."
48 Bernas, The 1987 Constitution of the Republic of the
Philippines: A Commentary 793 (2003).
49 Black, Handbook on the Construction and Interpretation of
the Laws 258-259 (1911); Crawford, The Construction of
Statutes 359-360 (1940); vide the Concurring and Dissenting
Opinion of Justice (now Chief Justice) Reynato S. Puno
in Santiago v. Comelec, 336 Phil. 848, 911 (1997).
50 Found particularly in Article XIII of the Constitution.
51 People v. Yabut, 58 Phil. 499 (1933).
52 Beltran v. Secretary of Health, G.R. No. 133640, November
25, 2005, 476 SCRA 168, 199-200.
53 Garcia v. Commission on Elections, G.R. No. 111511,
October 5, 1993, 227 SCRA 100, 107-108.
54 Supra note 25.
 55 Cf. Canonizado v. Hon. Aguirre, 380 Phil. 280, 296
(2000); Larin v. Executive Secretary, 345 Phil. 962, 980 (1997)
wherein it was held that reorganization is regarded as valid
provided it is pursued in good faith and, 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.
56 Cutaran v. DENR, 403 Phil. 654, 662-663 (2001).
57 "The right of the people and their organizations to effective
and reasonable participation at all levels of social, political,
and economic decision-making shall not be abridged. The
State shall, by law, facilitate the establishment of adequate
consultation mechanisms."
58 Vide Bernas, The Intent of the 1986 Constitution Writers
999, 1003-1005 (1995).
Case List No. 1; Case 5
EN BANC
G.R. No. 133132 January 25, 2000
ALEXIS C. CANONIZADO, EDGAR DULA TORRES, and ROGELIO A.
PUREZA, petitioners,
vs.
HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA
T. BONCODIN, as Secretary of Budget and Management, JOSE
91
PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U.
CRISTOBAL, respondents.
GONZAGA-REYES, J.:
The central issue posed before this Court in the present case is the
constitutionality of Republic Act No. 8851 (RA 8551), otherwise
known as the "Philippine National Police Reform and Reorganization
Act of 1998,"1 by virtue of which petitioners herein, who were all
members of the National Police Commission (NAPOLCOM), were
separated from office. Petitioners claim that such law violates their
constitutionally guaranteed right to security of tenure.
The NAPOLCOM was originally created under Republic Act No. 6975
(RA 6975), entitled "An Act Establishing The Philippine National Police
Under A Reorganized Department Of The Interior And Local
Government, And For Other Purposes." Under RA 6975, the members
of the NAPOLCOM were petitioners Edgar Dula Torres, Alexis C.
Canonizado, Rogelio A. Pureza and respondent Jose Percival L.
Adiong. Dula Torres was first appointed to the NAPOLCOM on January
8, 1991 for a six year term. He was re-appointed on January 23, 1997
for another six years. Canonizado was appointed on January 25, 1993
to serve the unexpired term of another Commissioner which ended
on December 31, 1995. On August 23, 1995, Canonizado was re-
appointed for another six years. Pureza was appointed on January 2,
1997 for a similar term of six years. Respondent Adiong's
appointment to the NAPOLCOM was issued on July 23, 1996. None of
their terms had expired at the time the amendatory law was passed.2
On March 6, 1998, RA 8551 took effect; it declared that the terms of
the current Commissioners were deemed as expired upon its
effectivity. Pursuant thereto, President Ramos appointed Romeo L.
Cairme on March 11, 1998 as a member of the NAPOLCOM for a full
six year term. On the same date, Adiong, was given a term extension
of two years since he had served less than two years of his previous
term. Cairme and Adiong both took their oaths of office on April 6,
1998.3 Completing the membership of the NAPOLCOM are Leo S.
Magahum and Cleofe M. Factoran, who were appointed by President
Estrada on June 30, 1998 and who took their oaths of office on July 2,
1998.4
According to petitioners, sections 4 and 8 of RA 8551 are
unconstitutional. Section 4, amending section 13 of Republic Act No.
6975, provides —
Sec. 13. Creation and Composition. — A National Police
Commission, hereinafter referred to as the Commission, is
hereby created for the purpose of effectively discharging the
functions prescribed in the Constitution and provided in this
Act. The Commission shall be an agency attached to the
Department for policy and program coordination. It shall be
composed of a Chairperson, four (4) regular Commissioners,
and the Chief of the PNP as ex-officio member. Three (3) of
the regular Commissioners shall come from the civilian sector
who are neither active nor former members of the police or
military, one (1) of whom shall be designated as vice
chairperson by the President. The fourth regular
Commissioner shall come from the law enforcement sector
either active or retired: Provided, That an active member of a
law enforcement agency shall be considered resigned from
said agency once appointed to the Commission: Provided
further, That at least one (1) of the Commissioners shall be a
woman. The Secretary of the Department shall be the ex-
officio Chairperson of the Commission, while the Vice
Chairperson shall act as the executive officer of the
Commission.
Meanwhile, section 8 states that —
92
Upon the effectivity of this Act, the terms of office of the
current Commissioners are deemed expired which shall
constitute a bar to their reappointment or an extension of
their terms in the Commission except for current
Commissioners who have served less than two (2) years of
their terms of office who may be appointed by the President
for a maximum term of two (2) years.
Petitioners argue that their removal from office by virtue of section 8
of RA 8551 violates their security of tenure.1âwphi1.nêt
It is beyond dispute that petitioners herein are members of the civil
service, which embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or
controlled corporations with original charters.5 As such, they cannot
be removed or suspended from office, except for cause provided by
law.6 The phrase "except for cause provided by law" refers to ". . .
reasons which the law and sound public policy recognize as sufficient
warrant for removal, that is, legal cause, and not merely causes which
the appointing power in the exercise of discretion may deem
sufficient."7
Public respondents insist that the express declaration in section 8 of
RA 8551 that the terms of petitioners' offices are deemed expired
discloses the legislative intent to impliedly abolish the NAPOLCOM
created under RA 6975 pursuant to a bona fide reorganization. In
support of their theory, public respondents cite the various changes
introduced by RA 8551 in the functions, composition and character of
the NAPOLCOM as proof of Congress' intention to abolish the body
created under RA 6975 in order to replace it with a new NAPOLCOM
which is more civilian in nature, in compliance with the constitutional
mandate. Petitioners' posit the theory that the abolition of
petitioners' offices was a result of a reorganization of the NAPOLCOM
allegedly effected by RA 8551.8
The creation and abolition of public offices is primarily a legislative
function.9 It is acknowledged that Congress may abolish any office it
creates without impairing the officer's right to continue in the
position held10 and that such power may be exercised for various
reasons, such as the lack of funds11 or in the interest of
economy.12 However, in order for the abolition to be valid, it must be
made in good faith, not for political or personal reasons, or in order to
circumvent the constitutional security of tenure of civil service
employees.13
An abolition of office connotes an intention to do away with such
office wholly and permanently, as the word "abolished"
denotes.14 Where one office is abolished and replaced with another
office vested with similar functions, the abolition is a legal nullity.
Thus, in U.P. Board of Regents v. Rasul15 we said:
It is true that a valid and bona fide abolition of an office denies
to the incumbent the right to security of tenure. [De la Lanna
v. Alba, 112 SCRA 294 (1982)]. However, in this case, the
renaming and restructuring of the PGH and its component
units cannot give rise to a valid and bona fide abolition of the
position of PGH Director. This is because where the abolished
office and the offices created in its place have similar
functions, the abolition lacks good faith. [Jose L. Guerrero v.
Hon. Antonio Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA
108 (1990)]. We hereby apply the principle enunciated
in Cesar Z. Dario vs. Hon. Salvador M. Mison [176 SCRA 84
(1989)] that abolition which merely changes the nomenclature
of positions is invalid and does not result in the removal of the
incumbent.
The above notwithstanding, and assuming that the abolition
of the position of the PGH Director and the creation of a UP-
PGH Medical Center Director are valid, the removal of the
incumbent is still not justified for the reason that the duties
93
and functions of the two positions are basically the same. . . .
(emphasis supplied)
This was also our ruling in Guerrero v. Arizabal,16 wherein we declared
that the substantial identity in the functions between the two offices
was indicia of bad faith in the removal of petitioner pursuant to a
reorganization.
We come now to the case at bench. The question that must first be
resolved is whether or not petitioners were removed by virtue of a
valid abolition of their office by Congress. More specifically, whether
the changes effected by RA 8551 in reference to the NAPOLCOM
were so substantial as to effectively create a completely new office in
contemplation of the law. In answer to this query, the case of Mayor
v. Macaraig17 is squarely in point.
In that case, the petitioners assailed the constitutionality of Republic
Act No. 671518 insofar as it declared vacant the positions of the
Commissioners, Executive Labor Arbiters and Labor Arbiters of the
National Labor Relations Commission and provided for the removal of
the incumbents upon the appointment and qualification of their
successors.19 The Court held that the removal of petitioners was
unconstitutional since Republic Act No. 6715 did not expressly or
impliedly abolish the offices of petitioners, there being no
irreconcilable inconsistency in the nature, duties and functions of the
petitioners' offices under the old law and the new law. Thus:
Abolition of an office is obviously not the same as the
declaration' that that office is vacant. While it is undoubtedly
a prerogative of the legislature to abolish certain offices, it can
not be conceded the power to simply pronounce those offices
vacant and thereby effectively remove the occupants or
holders thereof from the civil service. Such an act would
constitute, on its face, an infringement of the constitutional
guarantee of security of tenure, and will have to be struck
 down on that account. It can not be justified by the professed
"need to professionalize the higher levels of officialdom
invested with adjudicatory powers and functions, and to
upgrade their qualifications, ranks, and salaries or
emoluments.
This is precisely what RA 8851 seeks to do — declare the offices of
petitioners vacant, by declaring that "the terms of office of the
current Commissioners are deemed expired," thereby removing
petitioners herein from the civil service. Congress may only be
conceded this power if it is done pursuant to a bona fide abolition of
the NAPOLCOM.
RA 8551 did not expressly abolish petitioners' positions. In order to
determine whether there has been an implied abolition, it becomes
necessary to examine the changes introduced by the new law in the
nature, composition and functions of the NAPOLCOM.
Under RA 6975, the NAPOLCOM was described as a collegial body
within the Department of the Interior and Local
20
Government, (Department) whereas under RA 8551 it is made "an
agency attached to the Department for policy and program
coordination."21 Contrary to what public respondents would have us
believe, this does not result in the creation of an entirely new office.
In Mayor, the NLRC, prior to the passage of the amendatory law, was
also considered an integral part of the Department of Labor and
Employment. RA 6715, however, changed that by declaring that it
shall instead ". .be attached to the Department of Labor and
Employment for program coordination only. . . ." making it a more
autonomous body. The Court held that this change in the NLRC's
nature was not sufficient to justify a conclusion that the new law
abolished the offices of the labor commissioners.
Another amendment pointed out by public respondents is the
revision of the NAPOLCOM's composition. RA 8551 expanded the
94
membership of the NAPOLCOM from four to five Commissioners by
adding the Chief of the PNP as an ex-officio member. In addition, the
new law provided that three of the regular Commissioners shall come
from the civilian sector who are neither active nor former members
of the police or military, and that the fourth regular Commissioner
shall come from the law enforcement sector either active or retired.
Furthermore, it is required that at least one of the Commissioners
shall be a woman."22 Again, as we held in Mayor, such revisions do
not constitute such essential changes in the nature of the NAPOLCOM
as to result in an implied abolition of such office. It will be noted that
the organizational structure of the NAPOLCOM, as provided in section
20 of RA 6975 as amended by section 10 of RA 8551,23 remains
essentially the same and that, except for the addition of the PNP
Chief as ex-officio member, the composition of the NAPOLCOM is also
substantially identical under the two laws. Also, under both laws, the
Secretary of the Department shall act as the ex-officio Chairman of
the Commission and the Vice-Chairman shall be one of the
Commissioners designated by the President.24
Finally, the powers and duties of the NAPOLCOM remain basically
unchanged by the amendments. Under RA 6975, the Commission has
the following powers and functions:
(a) Exercise administrative control over the Philippine National
Police;
(b) Advise the President on all matters involving police
functions and administration;
(c) Foster and develop policies and promulgate rules and
regulations, standards and procedures to improve police
services based on sound professional concepts and principles;
(d) Examine and audit, and thereafter establish the standards
for such purposes on a continuing basis, the performance,
activities, and facilities of all police agencies throughout the
country;
(e) Prepare a police manual prescribing rules and regulations
for efficient organization, administration, and operation,
including recruitment, selection, promotion and retirement;
(f) Establish a system of uniform crime reporting;
(g) Conduct surveys and compile statistical data for the proper
evaluation of the efficiency and effectiveness of all police units
in the country;
(h) Render to the President and to Congress an annual report
on its activities and accomplishments during the (30) days
after the end of the calendar year, which shall include an
appraisal of the conditions obtaining in the organization and
administration of police agencies in the municipalities, cities
and provinces throughout the country, and recommendation
for appropriate remedial legislation;
(i) Approve or modify, through the National Appellate Board,
personnel disciplinary actions involving demolition or
dismissal from the service imposed upon members of the
Philippine National Police by the Chief of the Philippine
National Police;
(j) Affirm reverse or modify, through the National Appellate
Board, personnel disciplinary actions involving demotion or
dismissal from the service imposed upon members of the
Philippine National Police by the Chief of the Philippine
National Police;
95
(k) Exercise appellate jurisdiction through the regional
appellate boards over administrative cases against policemen
and over decisions on claims for police benefits;
(l) Recommend to the President, through the Secretary, within
sixty (60) days before the commencement of each calendar
year, a crime prevention;
(m) Prescribe minimum standards for arms, equipment, and
uniforms and, after consultation with the Philippine Heraldry
Commission, for insignia of ranks, awards and medals of
honor;
(n) Issue subpoena and subpoena duces tecum in matters
pertaining to the discharge of its own powers and duties, and
designate who among its personnel can issue such processes
and administer oaths in connection therewith; and
(o) Perform such other functions necessary to carry out the
provisions of this Act and as the President may direct.
Meanwhile, the NAPOLCOM's functions under section 5 of RA 8551
are:
a) Exercise administrative control and operational supervision
over the Philippine National Police which shall mean the
power to:
1) Develop policies and promulgate a police manual
prescribing rules and regulations for efficient
organization, administration, and operation, including
criteria for manpower allocation, distribution and
deployment, recruitment, selection , promotion, and
retirement of personnel and the conduct of qualifying
entrance and promotional examinations for uniformed
members;
2) Examine and audit, and thereafter establish the
standards for such purposes on a continuing basis, the
performance, activities and facilities of all police
agencies throughout the country;
3) Establish a system of uniform crime reporting;
4) Conduct an annual self-report survey and compile
statistical date for the accurate assessment of the
crime situation and the proper evaluation of the
efficiency and effectiveness of all police units in the
country;
5) Approve or modify plans and programs on education
and training, logistical requirements, communications,
records, information systems, crime laboratory, crime
prevention and crime reporting;
6) Affirm, reverse or modify, through the National
Appellate Board, personnel disciplinary actions
involving demotion or dismissal from the service
imposed upon members of the Philippine National
Police by the Chief of the Philippine National Police;
7) Exercise appellate jurisdiction through the regional
appellate boards over administrative cases against
policemen and over decisions on claims for police
benefits;
8) Prescribe minimum standards for arms, equipment,
and uniforms and after consultation with the
Philippine Heraldry Commission, for insignia of ranks,
96
awards, and medals of honor. Within ninety (90) days
from the effectivity of this Act, the standards of the
uniformed personnel of the PNP must be revised which
should be clearly distinct from the military and
reflective of the civilian character of the police;
9) Issue subpoena and subpoena duces tecum in
matters pertaining to the discharge of its own powers
and duties, and designate who among its personnel
can issue such processes and administer oaths in
connection therewith;
10) Inspect and assess the compliance of the PNP on
the established criteria for manpower allocation,
distribution, and deployment and their impact on the
community and the crime situation, and therewith
formulate appropriate guidelines for maximization of
resources and effective utilization of the PNP
personnel;
11) Monitor the performance of the local chief
executives as deputies of the Commission; and
12) Monitor and investigate police anomalies and
irregularities.
b) Advise the President on all matters involving police
functions and administration;
c) Render to the President and to the Congress an annual
report on its activities and accomplishments during the thirty
(30) days after the end of the calendar year, which shall
include an appraisal of the conditions obtaining in the
organization and administration of police agencies in the
 municipalities, cities and provinces throughout the country,
and recommendations for appropriate remedial legislation;
d) Recommend to the President, through the Secretary, within
sixty (60) days before the commencement of each calendar
year, a crime prevention program; and
e) Perform such other functions necessary to carry out the
provisions of this Act and as the President may direct.
Clearly, the NAPOLCOM continues to exercise substantially the same
administrative, supervisory, rule-making, advisory and adjudicatory
functions.
Public respondents argue that the fact that the NAPOLCOM is now
vested with administrative control and operational supervision over
the PNP, whereas under RA 6975 it only exercised administrative
control should be construed as evidence of legislative intent to
abolish such office.25 This contention is bereft of merit. 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 the that of the latter." 26 On
the other hand, to supervise is to oversee, to have oversight of, to
superintend the execution of or the performance of a thing, or the
movements or work of a person, to inspect with authority; it is the
power or authority of an officer to see that subordinate officers
perform their duties.27 Thus, the power of control necessarily
encompasses the power of supervision and adding the phrase
"operational supervision" under the powers of the NAPOLCOM would
not bring about a substantial change in its functions so as to arrive at
the conclusion that a completely new office has been created.
Public respondents would have this Court believe that RA 8551
reorganized the NAPOLCOM resulting in the abolition of petitioners'
97
offices. We hold that there has been absolutely no attempt by
Congress to effect such a reorganization.
Reorganization takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines of
control, authority and responsibility between them.28 It involves a
reduction of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions.29 Naturally, it may
result in the loss of one's position through removal or abolition of an
office. However, for a reorganization to be valid, it must also pass the
test of good faith, laid down in Dario v. Mison:30
. . . 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 (in case
of a dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, 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.
It is exceedingly apparent to this Court that RA 8551 effected a
reorganization of the PNP, not of the NAPOLCOM. They are two
separate and distinct bodies, with one having supervision and control
over the other. In fact, it is the NAPOLCOM that is given the duty of
submitting a proposed reorganization plan of the PNP to
Congress.31 As mentioned earlier, the basic structure of the
NAPOLCOM has been preserved by the amendatory law. There has
been no revision in its lines of control, authority and responsibility,
neither has there been a reduction in its membership, nor a
consolidation or abolition of the offices constituting the same. Adding
the Chief of the PNP as an ex-officio member of the Commission does
not result in a reorganization.
No bona fide reorganization of the NAPOLCOM having been
mandated by Congress, RA 8551, insofar as it declares the terms of
office of the incumbent Commissioners, petitioners herein, as expired
and resulting in their removal from office, removes civil service
employees from office without legal cause and must therefore be
struck down for being constitutionally infirm.
Petitioners are thus entitled to be reinstated to office. It is of no
moment that there are now new appointees to the NAPOLCOM. It is a
well-entrenched principle that when a regular government employee
is illegally dismissed, his position never became vacant under the law
and he is considered as not having left his office. The new
appointments made in order to replace petitioners are not valid.32
At this juncture, we note that it is alleged by public respondents that
on June 30, 1998, Canonizado accepted an appointment by President
Estrada as the Inspector General of Internal Affairs Services (IAS) of
the PNP, pursuant to sections 40 and 41 of RA 8551 and that he took
his oath of office before the President on July 7, 1998. However, this
is a mere allegation on the part of public respondents of which this
Court cannot take judicial notice. Furthermore, this issue has not
been fully ventilated in the pleadings of the parties. Therefore, such
allegation cannot be taken into consideration by this Court in passing
upon the issues in the present case.
Petitioners also assail the constitutionality of section 4 of RA 8551
insofar as it limits the law enforcement sector to only one position on
the Commission and categorizes the police as being part of the law
enforcement sector despite section 6 of Article XVI of the
Constitution which provides that the police force shall be civilian in
character. Moreover, it is asserted by petitioners that the
98
requirement in section 4 that one of the Commissioners shall be a
woman has no rational basis and is therefore discriminatory. They
claim that it amounts to class legislation and amounts to an undue
restriction upon the appointing power of the President as provided
under section 16 of Article VII of the Constitution.33
In view of our ruling upon the unconstitutionality of petitioners'
removal from office by virtue of section 8 of RA 8551, we find that
there is no longer any need to pass upon these remaining
constitutional questions. It is beyond doubt that the legislature has
the power to provide for the composition of the NAPOLCOM since it
created such body. Besides, these questions go into the very wisdom
of the law, and unquestionably lie beyond the normal prerogatives of
the Court to pass upon.34
WHEREFORE, we grant the petition, but only to the extent of
declaring section 8 of RA 8551 unconstitutional for being in violation
of the petitioners' right to security of tenure. The removal from office
of petitioners as a result of the application of such unconstitutional
provision of law and the appointment of new Commissioners in their
stead is therefore null and void. Petitioners herein are entitled to
REINSTATEMENT and to the payment of full backwages to be
reckoned from the date they were removed from office.35
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago
and De Leon, Jr., JJ., concur.
Footnotes
1 Entitled "An Act Providing For the Reform And
Reorganization Of The Philippine National Police And For
Other Purposes, Amending Certain Provisions Of Republic Act
Numbered Sixty-Nine Hundred And Seventy-Five Entitled, "An
Act Establishing The Philippine National Police Under A Re-
Organized Department Of The Interior And Local Government,
And For Other Purposes." Took effect on March 6, 1998.
2 Rollo, 81.
3 Ibid.
4 Ibid., 83.
5 Constitution, art. 9 (B), sec. 2 (1).
6 Id., art. 9 (B), sec. 2 (3).
7 De los Santos vs. Mallare, 87 Phil 289 (1950).
8 Rollo, 84-94.
9 Eugenio v. Civil Service Commission, 243 SCRA 196 (1995).
10 Manalang v. Quitoriano, 94 Phil 903 (1954).
11 Ginzon v. Municipality of Murcia, 158 SCRA 1 (1988);
Gregorio v. Court of Appeals, 129 SCRA 184 (1984).
12 Abrot v. Court of Appeals, 116 SCRA 468 (1982).
13 Baldoz v. Office of the President, 78 SCRA 354 (1977).
14 Busacay v. Buenaventura and Murao, 93 Phil 786 (1953).
15 200 SCRA 685 (1991). See Gacho v. Osmena, Jr., 103 Phil 837
(1958); Brillo v. Enage, 94 Phil 732 (1954).
16 186 SCRA 108 (1990).
17 194 SCRA 672 (1991).
18 Entitled "An Act To Extend Protection To Labor, Strengthen
The Constitutional Rights Of Workers To Self-Organization,
Collective Bargaining And Peaceful Concerted Activities, Foster
Industrial Peace And Harmony, Promote The Preferential Use
Of Voluntary Modes Of Settling Labor Disputes And Reorgnize
The National Labor Relations Commission, Amending
Presidential Decree No. 441, As Amended, Otherwise Known
As The Labor Code Of The Philippines, Appropriating Funds
Therefor And For Other Purposes." Took effect on March 21,
1989.
19 Id. SEC. 35 provides —
99
Equity of the Incumbent. — Incumbent career officials
and rank-and-file employees of the National Labor
Relations Commission not otherwise affected by the
Act shall continue to hold office without need of
reappointment. However, consistent with the need to
professionalize the higher levels of officialdom invested
with adjudicatory powers and functions, and to
upgrade their qualifications, ranks, and salaries or
emoluments, all positions of the Commissioners,
Executive Labor Arbiters and Labor Arbiters of the
present National Labor Relations Commission are
hereby declared vacant. However, subject officials shall
continue to temporarily discharge their duties and
functions until their successors shall have been duly
appointed and qualified. (emphasis supplied).
20 RA 6975, sec. 13.
21 RA 8551, sec. 4.
22 Id.
23 Id., SEC. 10 Section 20 of Republic Act No. 6975 is hereby
amended to read as follows:
Sec. 20. Organizational Structure. — The Commission
shall consist of the following units:
(a) Commission Proper. — This is composed of
the offices of the Chairman and four (4)
Commissioners.
(b) Staff Services. — The staff services of the
Commission shall be as follows:
(1) The Planning and Research Service,
which shall provide technical services to
the Commission in areas of overall
policy formulation, strategic and
operational planning, management
systems or procedures, evaluation and
monitoring of the Commission's
programs, projects and internal
operations; and shall conduct thorough
research and analysis on social and
economic conditions affecting peace
and order in the country;
(2) The Legal Affairs Service, which shall
provide the Commission with efficient
service as legal counsel of the
Commission; draft or study contracts
affecting the Commission and submit
appropriate recommendations
pertaining thereto; and render legal
opinions arising from the administration
and operation of the Philippine National
Police and the Commission;
(3) The Crime Prevention and
Coordination Service, which shall
undertake criminological researches and
studies; formulate a national crime
prevention plan; develop a crime
prevention and information program
and provide editorial direction for all
criminology research and crime
prevention publications;
(4) The Personnel and Administrative
Service, which shall perform personnel
functions for the Commission,
administer the entrance and
promotional examinations for the
policemen, provide the necessary
services relating to records,
correspondence, supplies, property and
equipment, security and general
services, and the maintenance and
utilization of facilities, and provide
services relating to manpower, career
100
planning and development, personnel
transaction and employee welfare;
(5) The Inspection, Monitoring and
Investigation Service, which shall
conduct continuous inspection and
management audit of personnel,
facilities and operations at all levels of
command of the PNP, monitor the
implementation of the Commission's
programs and projects relative to the
law enforcement; and monitor and
investigate police anomalies and
irregularities;
(6) The Installations and Logistics
Service, which shall review the
Commission's plans and programs and
formulate policies and procedures
regarding acquisition, inventory,
control, distribution, maintenance and
disposal of supplies and shall oversee
the implementation of programs on
transportation facilities and installations
and the procurement and maintenance
of supplies and equipment; and
(7) The Financial Service, which shall
provide the Commission with staff
advice and assistance on budgetary and
financial matters, including the
overseeing of the processing and
disbursement of funds pertaining to the
scholarship program and surviving
children of deceased and/or
permanently incapacitated PNP
personnel.
 (c) Disciplinary Appellate Boards. — The
Commission shall establish a formal
administrative disciplinary appellate machinery
consisting of the National Appellate Board and
the regional appellate boards.1âwphi1.nêt
The National Appellate Board shall decide cases on
appeal from decisions rendered by the chief, while the
regional appellate boards shall decide cases on appeal
from decisions rendered by officers other than the PNP
non-uniformed personnel to positions which are purely
administrative, technical, clerical or menial in nature
and other positions which are not actually and directly
related to police operation; and b) efficient and
optimized delivery of police services to the
communities.
The PNP reorganization program shall be approved by
Congress through a joint resolution.
32 Floreza v. Ongpin, 182 SCRA 692 (1990); Tanala v. Legaspi,

chief, the mayor, and the People's Law Enforcement 13 SCRA 566 (1965).
Board (PLEB) created hereunder. 33 Rollo, 8-12.

(amendments are underscored) 34 Osmena v. Commission on Elections, 288 SCRA 447 (1998).
24 RA 6975, sec. 13; RA 8551, sec. 4. 35 Mendoza v. Quisumbing, 186 SCRA 108 (1990).
25 Rollo, 88.
26 Blaquera v. Alcala, 295 SCRA 366 (1998).
27 Borres v. Canonoy, G.R. No. L-31641, October 23, 1981.
28 De Leon and De Leon, Jr., The Law On Public Officers And

Election Law (1994 ed.), 365.

29 Dario v. Mison, 176 SCRA 84 (1989).
30 176 SCRA 84 (1989). See Dytiapco v. Civil Service
Commission, 211 SCRA 88 (1992); Domingo v. Development
Bank of the Philippines, 207 SCRA 766 (1992); Pari-an v. Civil
Service Commission, 202 SCRA 772 (1991).
31 RA 8551, SEC. 13. Authority of the Commission to Reorganize

the PNP. —
Notwithstanding the provisions of Republic Act No.
6975 on the organizational structure and rank Case List No. 1; Case 6
classification of the PNP, the Commission shall conduct
a management audit, and prepare and submit to EN BANC
Congress a proposed reorganization plan of the PNP
not later than December 31, 1998, subject to the
limitations provided under this Act and based on the
following criteria: a) increased police visibility through G.R. No. 115863 March 31, 1995
dispersal of personnel from the headquarters to the
field offices and by the appointment and assignment of
101
AIDA D. EUGENIO, petitioner,
vs.
CIVIL SERVICE COMMISSION, HON. TEOFISTO T. GUINGONA, JR. &
HON. SALVADOR ENRIQUEZ, JR., respondents.
PUNO, J.:
The power of the Civil Service Commission to abolish the Career
Executive Service Board is challenged in this petition for certiorari and
prohibition.
First the facts. Petitioner is the Deputy Director of the Philippine
Nuclear Research Institute. She applied for a Career Executive Service
(CES) Eligibility and a CESO rank on August 2, 1993, she was given a
CES eligibility. On September 15, 1993, she was recommended to the
President for a CESO rank by the Career Executive Service Board. 1
All was not to turn well for petitioner. On October 1, 1993,
respondent Civil Service Commission2 passed Resolution No. 93-
4359, viz:
RESOLUTION NO. 93-4359
WHEREAS, Section 1(1) of Article IX-B provides that
Civil Service shall be administered by the Civil Service
Commission, . . .;
WHEREAS, Section 3, Article IX-B of the 1987 Philippine
Constitution provides that "The Civil Service
Commission, as the central personnel agency of the
government, is mandated to establish a career service
and adopt measures to promote morale, efficiency,
102
integrity, responsiveness, progresiveness and courtesy
in the civil service, . . .";
WHEREAS, Section 12 (1), Title I, Subtitle A, Book V of
the Administrative Code of 1987 grants the
Commission the power, among others, to administer
and enforce the constitutional and statutory provisions
on the merit system for all levels and ranks in the Civil
Service;
WHEREAS, Section 7, Title I, Subtitle A, Book V of the
Administrative Code of 1987 Provides, among others,
that The Career Service shall be characterized by (1)
entrance based on merit and fitness to be determined
as far as practicable by competitive examination, or
based highly technical qualifications; (2) opportunity
for advancement to higher career positions; and (3)
security of tenure;
WHEREAS, Section 8 (c), Title I, Subtitle A, Book V of
the administrative Code of 1987 provides that "The
third level shall cover Positions in the Career Executive
Service";
WHEREAS, the Commission recognizes the imperative
need to consolidate, integrate and unify the
administration of all levels of positions in the career
service.
WHEREAS, the provisions of Section 17, Title I, Subtitle
A. Book V of the Administrative Code of 1987 confers
on the Commission the power and authority to effect
changes in its organization as the need arises.
 WHEREAS, Section 5, Article IX-A of the Constitution
provides that the Civil Service Commission shall enjoy
fiscal autonomy and the necessary implications
thereof;
NOW THEREFORE, foregoing premises considered, the
Civil Service Commission hereby resolves to streamline
reorganize and effect changes in its organizational
structure. Pursuant thereto, the Career Executive
Service Board, shall now be known as the Office for
Career Executive Service of the Civil Service
Commission. Accordingly, the existing personnel,
budget, properties and equipment of the Career
Executive Service Board shall now form part of the
Office for Career Executive Service.
The above resolution became an impediment. to the appointment of
petitioner as Civil Service Officer, Rank IV. In a letter to petitioner,
dated June 7, 1994, the Honorable Antonio T. Carpio, Chief
Presidential legal Counsel, stated:
xxx xxx xxx
On 1 October 1993 the Civil Service Commission issued
CSC Resolution No. 93-4359 which abolished the
Career Executive Service Board.
Several legal issues have arisen as a result of the
issuance of CSC Resolution No. 93-4359, including
whether the Civil Service Commission has authority to
abolish the Career Executive Service Board. Because
these issues remain unresolved, the Office of the
President has refrained from considering
appointments of career service eligibles to career
executive ranks.
103
xxx xxx xxx
You may, however, bring a case before the appropriate
court to settle the legal issues arising from issuance by
the Civil Service Commission of CSC Resolution No. 93-
4359, for guidance of all concerned.
Thank You.
Finding herself bereft of further administrative relief as the Career
Executive Service Board which recommended her CESO Rank IV has
been abolished, petitioner filed the petition at bench to annul, among
others, resolution No. 93-4359. The petition is anchored on the
following arguments:
A.
IN VIOLATION OF THE CONSTITUTION, RESPONDENT
COMMISSION USURPED THE LEGISLATIVE FUNCTIONS
OF CONGRESS WHEN IT ABOLISHED THE CESB, AN
OFFICE CREATED BY LAW, THROUGH THE ISSUANCE OF
CSC: RESOLUTION NO. 93-4359;
B.
ALSO IN VIOLATION OF THE CONSTITUTION,
RESPONDENT CSC USURPED THE LEGISLATIVE
FUNCTIONS OF CONGRESS WHEN IT ILLEGALLY
AUTHORIZED THE TRANSFER OF PUBLIC MONEY,
THROUGH THE ISSUANCE OF CSC RESOLUTION NO. 93-
4359.
Required to file its Comment, the Solicitor General agreed with the
contentions of petitioner. Respondent Commission, however, chose
to defend its ground. It posited the following position:
ARGUMENTS FOR PUBLIC RESPONDENT-CSC
I. THE INSTANT PETITION STATES NO CAUSE OF
ACTION AGAINST THE PUBLIC RESPONDENT-CSC.
II. THE RECOMMENDATION SUBMITTED TO THE
PRESIDENT FOR APPOINTMENT TO A CESO RANK OF
PETITIONER EUGENIO WAS A VALID ACT OF THE
CAREER EXECUTIVE SERVICE BOARD OF THE CIVIL
SERVICE COMMISSION AND IT DOES NOT HAVE ANY
DEFECT.
III. THE OFFICE OF THE PRESIDENT IS ESTOPPED FROM
QUESTIONING THE VALIDITY OF THE
RECOMMENDATION OF THE CESB IN FAVOR OF
PETITIONER EUGENIO SINCE THE PRESIDENT HAS
PREVIOUSLY APPOINTED TO CESO RANK FOUR (4)
OFFICIALS SIMILARLY SITUATED AS SAID PETITIONER.
FURTHERMORE, LACK OF MEMBERS TO CONSTITUTE A
QUORUM. ASSUMING THERE WAS NO QUORUM, IS
NOT THE FAULT OF PUBLIC RESPONDENT CIVIL
SERVICE COMMISSION BUT OF THE PRESIDENT WHO
HAS THE POWER TO APPOINT THE OTHER MEMBERS
OF THE CESB.
IV. THE INTEGRATION OF THE CESB INTO THE
COMMISSION IS AUTHORIZED BY LAW (Sec. 12 (1),
Title I, Subtitle A, Book V of the Administrative Code of
the 1987). THIS PARTICULAR ISSUE HAD ALREADY BEEN
SETTLED WHEN THE HONORABLE COURT DISMISSED
THE PETITION FILED BY THE HONORABLE MEMBERS OF
THE HOUSE OF REPRESENTATIVES, NAMELY: SIMEON
A. DATUMANONG, FELICIANO R. BELMONTE, JR.,
RENATO V. DIAZ, AND MANUEL M. GARCIA IN G.R. NO.
114380. THE AFOREMENTIONED PETITIONERS ALSO
104
QUESTIONED THE INTEGRATION OF THE CESB WITH
THE COMMISSION.
We find merit in the petition.3
The controlling fact is that the Career Executive Service Board (CESB)
was created in the Presidential Decree (P.D.) No. 1 on September 1,
19744 which adopted the Integrated Plan. Article IV, Chapter I, Part of
the III of the said Plan provides:
Article IV — Career Executive Service
1. A Career Executive Service is created to form a
continuing pool of well-selected and development
oriented career administrators who shall provide
competent and faithful service.
2. A Career Executive Service hereinafter referred to in
this Chapter as the Board, is created to serve as the
governing body of the Career Executive Service. The
Board shall consist of the Chairman of the Civil Service
Commission as presiding officer, the Executive
Secretary and the Commissioner of the Budget as ex-
officio members and two other members from the
private sector and/or the academic community who
are familiar with the principles and methods of
personnel administration.
xxx xxx xxx
5. The Board shall promulgate rules, standards and
procedures on the selection, classification,
compensation and career development of members of
the Career Executive Service. The Board shall set up
 the organization and operation of the service.
(Emphasis supplied)
It cannot be disputed, therefore, that as the CESB was created by law,
it can only be abolished by the legislature. This follows an unbroken
stream of rulings that the creation and abolition of public offices is
primarily a legislative function. As aptly summed up in AM JUR 2d on
Public Officers and
Employees, 5 viz:
Except for such offices as are created by the
Constitution, the creation of public offices is primarily
a legislative function. In so far as the legislative power
in this respect is not restricted by constitutional
provisions, it supreme, and the legislature may decide
for itself what offices are suitable, necessary, or
convenient. When in the exigencies of government it is
necessary to create and define duties, the legislative
department has the discretion to determine whether
additional offices shall be created, or whether these
duties shall be attached to and become ex-
officio duties of existing offices. An office created by
the legislature is wholly within the power of that body,
and it may prescribe the mode of filling the office and
the powers and duties of the incumbent, and if it sees
fit, abolish the office.
In the petition at bench, the legislature has not enacted any law
authorizing the abolition of the CESB. On the contrary, in all the
General Appropriations Acts from 1975 to 1993, the legislature has
set aside funds for the operation of CESB. Respondent Commission,
however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V of
the Administrative Code of 1987 as the source of its power to abolish
the CESB. Section 17 provides:
105
Sec. 17. Organizational Structure. — Each office of the
Commission shall be headed by a Director with at least
one Assistant Director, and may have such divisions as
are necessary independent constitutional body, the
Commission may effect changes in the organization as
the need arises.
But as well pointed out by petitioner and the Solicitor General,
Section 17 must be read together with Section 16 of the said Code
which enumerates the offices under the respondent Commission, viz:
Sec. 16. Offices in the Commission. — The Commission
shall have the following offices:
(1) The Office of the Executive Director headed by an
Executive Director, with a Deputy Executive Director
shall implement policies, standards, rules and
regulations promulgated by the Commission;
coordinate the programs of the offices of the
Commission and render periodic reports on their
operations, and perform such other functions as may
be assigned by the Commission.
(2) The Merit System Protection Board composed of a
Chairman and two (2) members shall have the
following functions:
xxx xxx xxx
(3) The Office of Legal Affairs shall provide the
Chairman with legal advice and assistance; render
counselling services; undertake legal studies and
researches; prepare opinions and ruling in the
interpretation and application of the Civil Service law,
rules and regulations; prosecute violations of such law,
rules and regulations; and represent the Commission
before any court or tribunal.
(4) The Office of Planning and Management shall
formulate development plans, programs and projects;
undertake research and studies on the different
aspects of public personnel management; administer
management improvement programs; and provide
fiscal and budgetary services.
(5) The Central Administrative Office shall provide the
Commission with personnel, financial, logistics and
other basic support services.
(6) The Office of Central Personnel Records shall
formulate and implement policies, standards, rules and
regulations pertaining to personnel records
maintenance, security, control and disposal; provide
storage and extension services; and provide and
maintain library services.
(7) The Office of Position Classification and
Compensation shall formulate and implement policies,
standards, rules and regulations relative to the
administration of position classification and
compensation.
(8) The Office of Recruitment, Examination and
Placement shall provide leadership and assistance in
developing and implementing the overall Commission
programs relating to recruitment, execution and
placement, and formulate policies, standards, rules
and regulations for the proper implementation of the
Commission's examination and placement programs.
106
(9) The Office of Career Systems and Standards shall
provide leadership and assistance in the formulation
and evaluation of personnel systems and standards
relative to performance appraisal, merit promotion,
and employee incentive benefit and awards.
(10) The Office of Human Resource Development shall
provide leadership and assistance in the development
and retention of qualified and efficient work force in
the Civil Service; formulate standards for training and
staff development; administer service-wide scholarship
programs; develop training literature and materials;
coordinate and integrate all training activities and
evaluate training programs.
(11) The Office of Personnel Inspection and Audit shall
develop policies, standards, rules and regulations for
the effective conduct or inspection and audit
personnel and personnel management programs and
the exercise of delegated authority; provide technical
and advisory services to Civil Service Regional Offices
and government agencies in the implementation of
their personnel programs and evaluation systems.
(12) The Office of Personnel Relations shall provide
leadership and assistance in the development and
implementation of policies, standards, rules and
regulations in the accreditation of employee
associations or organizations and in the adjustment
and settlement of employee grievances and
management of employee disputes.
(13) The Office of Corporate Affairs shall formulate and
implement policies, standards, rules and regulations
governing corporate officials and employees in the
 areas of recruitment, examination, placement, career
development, merit and awards systems, position
classification and compensation, performing appraisal,
employee welfare and benefit, discipline and other
aspects of personnel management on the basis of
comparable industry practices.
(14) The Office of Retirement Administration shall be
responsible for the enforcement of the constitutional
and statutory provisions, relative to retirement and the
regulation for the effective implementation of the
retirement of government officials and employees.
(15) The Regional and Field Offices. — The Commission
shall have not less than thirteen (13) Regional offices
each to be headed by a Director, and such field offices
as may be needed, each to be headed by an official
with at least the rank of an Assistant Director.
As read together, the inescapable conclusion is that
respondent Commission's power to reorganize is limited to
offices under its control as enumerated in Section 16, supra.
From its inception, the CESB was intended to be an
autonomous entity, albeit administratively attached to
respondent Commission. As conceptualized by the
Reorganization Committee "the CESB shall be autonomous. It
is expected to view the problem of building up executive
manpower in the government with a broad and positive
outlook." 6 The essential autonomous character of the CESB is
not negated by its attachment to respondent Commission. By
said attachment, CESB was not made to fall within the control
of respondent Commission. Under the Administrative Code of
1987, the purpose of attaching one functionally inter-related
government agency to another is to attain "policy and
107
program coordination." This is clearly etched out in Section
38(3), Chapter 7, Book IV of the aforecited Code, to wit:
(3) Attachment. — (a) This refers to the lateral
relationship between the department or its equivalent
and attached agency or corporation for purposes of
policy and program coordination. The coordination
may be accomplished by having the department
represented in the governing board of the attached
agency or corporation, either as chairman or as a
member, with or without voting rights, if this is
permitted by the charter; having the attached
corporation or agency comply with a system of
periodic reporting which shall reflect the progress of
programs and projects; and having the department or
its equivalent provide general policies through its
representative in the board, which shall serve as the
framework for the internal policies of the attached
corporation or agency.
Respondent Commission also relies on the case of Datumanong, et
al., vs. Civil Service Commission, G. R. No. 114380 where the petition
assailing the abolition of the CESB was dismissed for lack of cause of
action. Suffice to state that the reliance is misplaced considering that
the cited case was dismissed for lack of standing of the petitioner,
hence, the lack of cause of action.
IN VIEW WHEREOF, the petition is granted and Resolution No. 93-
4359 of the respondent Commission is hereby annulled and set aside.
No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Quiason, Vitug, Kapunan and Mendoza, JJ., concur.

Footnotes
1 Together with twenty-six (26) others.
2 Patricia A. Sto. Tomas (Chairman), Ramon P. Ereneta,
Jr., (member) and Thelma P. Gaminde (member).
3 On February 13, 1995, respondent CSC manifested
that the President appointed petitioner to CESO rank
on January 9, 1995. Her appointment, however, has
not rendered moot the broader issue of whether or
not the abolition of Career Executive Service Board is
valid.
4 P. D. No. 1 was later amended by P.D. No. 336 and
P.D. No. 367 on the composition of the CESB; P.D. No.
807 and E.O. No. 292 (Administrative Code of 1987)
reiterated the functions of the CESB. The General
Appropriations Acts from 1975 to 1993 also uniformly
appropriated funds for the CESB.
5 63 AM JUR 2d section 30.
6 Reorganization Panel Reports, Vol. II, pp. 16 to 49 as
cited in Petition, p. 17.
Case List No. 1; Case 7
FIRST DIVISION
108
G.R. No. 152845 August 5, 2003
DRIANITA BAGAOISAN, FELY MADRIAGA, SHIRLY TAGABAN,
RICARDO SARANDI, SUSAN IMPERIAL, BENJAMIN DEMDEM,
RODOLFO DAGA, EDGARDO BACLIG, GREGORIO LABAYAN, HILARIO
JEREZ, and MARIA CORAZON CUANANG, Petitioners,
vs.
NATIONAL TOBACCO ADMINISTRATION, represented by ANTONIO
DE GUZMAN and PERLITA BAULA, Respondents.
DECISION
VITUG, J.:
President Joseph Estrada issued on 30 September 1998 Executive
Order No. 29, entitled "Mandating the Streamlining of the National
Tobacco Administration (NTA)," a government agency under the
Department of Agriculture. The order was followed by another
issuance, on 27 October 1998, by President Estrada of Executive
Order No. 36, amending Executive Order No. 29, insofar as the new
staffing pattern was concerned, by increasing from four hundred
(400) to not exceeding seven hundred fifty (750) the positions
affected thereby. In compliance therewith, the NTA prepared and
adopted a new Organization Structure and Staffing Pattern (OSSP)
which, on 29 October 1998, was submitted to the Office of the
President.
On 11 November 1998, the rank and file employees of NTA Batac,
among whom included herein petitioners, filed a letter-appeal with
the Civil Service Commission and sought its assistance in recalling the
OSSP. On 04 December 1998, the OSSP was approved by the
Department of Budget and Management (DBM) subject to certain
revisions. On even date, the NTA created a placement committee to
assist the appointing authority in the selection and placement of
permanent personnel in the revised OSSP. The results of the
evaluation by the committee on the individual qualifications of
applicants to the positions in the new OSSP were then disseminated
and posted at the central and provincial offices of the NTA.
On 10 June 1996, petitioners, all occupying different positions at the
NTA office in Batac, Ilocos Norte, received individual notices of
termination of their employment with the NTA effective thirty (30)
days from receipt thereof. Finding themselves without any immediate
relief from their dismissal from the service, petitioners filed a petition
for certiorari, prohibition and mandamus, with prayer for preliminary
mandatory injunction and/or temporary restraining order, with the
Regional Trial Court (RTC) of Batac, Ilocos Norte, and prayed -
"1) that a restraining order be immediately issued enjoining
the respondents from enforcing the notice of termination
addressed individually to the petitioners and/or from
committing further acts of dispossession and/or ousting the
petitioners from their respective offices;
"2) that a writ of preliminary injunction be issued against the
respondents, commanding them to maintain the status quo to
protect the rights of the petitioners pending the
determination of the validity of the implementation of their
dismissal from the service; and
"3) that, after trial on the merits, judgment be rendered
declaring the notice of termination of the petitioners illegal
and the reorganization null and void and ordering their
reinstatement with backwages, if applicable, commanding the
respondents to desist from further terminating their services,
and making the injunction permanent."1
The RTC, on 09 September 2000, ordered the NTA to appoint
petitioners in the new OSSP to positions similar or comparable to
their respective former assignments. A motion for reconsideration
109
filed by the NTA was denied by the trial court in its order of 28
February 2001. Thereupon, the NTA filed an appeal with the Court of
Appeals, raising the following issues:
"I. Whether or not respondents submitted evidence as proof
that petitioners, individually, were not the ‘best qualified and
most deserving’ among the incumbent applicant-employees.
"II. Whether or not incumbent permanent employees,
including herein petitioners, automatically enjoy a preferential
right and the right of first refusal to
appointments/reappointments in the new Organization
Structure And Staffing Pattern (OSSP) of respondent NTA.
"III. Whether or not respondent NTA in implementing the
mandated reorganization pursuant to E.O. No. 29, as amended
by E.O. No. 36, strictly adhere to the implementing rules on
reorganization, particularly RA 6656 and of the Civil Service
Commission – Rules on Government Reorganization.
"IV. Whether or not the validity of E.O. Nos. 29 and 36 can be
put in issue in the instant case/appeal."2
On 20 February 2002, the appellate court rendered a decision
reversing and setting aside the assailed orders of the trial court.
Petitioners went to this Court to assail the decision of the Court of
Appeals, contending that -
"I. The Court of Appeals erred in making a finding that went
beyond the issues of the case and which are contrary to those
of the trial court and that it overlooked certain relevant facts
not disputed by the parties and which, if properly considered,
would justify a different conclusion;
 "II. The Court of Appeals erred in upholding Executive Order
Nos. 29 and 36 of the Office of the President which are mere
administrative issuances which do not have the force and
effect of a law to warrant abolition of positions and/or
effecting total reorganization;
"III. The Court of Appeals erred in holding that petitioners’
removal from the service is in accordance with law;
"IV. The Court of Appeals erred in holding that respondent
NTA was not guilty of bad faith in the termination of the
services of petitioners; (and)
"V. The Court of Appeals erred in ignoring case
law/jurisprudence in the abolition of an office."3
In its resolution of 10 July 2002, the Court required the NTA to file its
comment on the petition. On 18 November 2002, after the NTA had
filed its comment of 23 September 2002, the Court issued its
resolution denying the petition for failure of petitioners to sufficiently
show any reversible error on the part of the appellate court in its
challenged decision so as to warrant the exercise by this Court of its
discretionary appellate jurisdiction. A motion for reconsideration filed
by petitioners was denied in the Court’s resolution of 20 January
2002.
On 21 February 2003, petitioners submitted a "Motion to Admit
Petition For En Banc Resolution" of the case allegedly to address a
basic question, i.e., "the legal and constitutional issue on whether the
NTA may be reorganized by an executive fiat, not by legislative
action."4 In their "Petition for an En Banc Resolution" petitioners
would have it that -
110
"1. The Court of Appeals’ decision upholding the
reorganization of the National Tobacco Administration sets a
dangerous precedent in that:
"’a) A mere Executive Order issued by the Office of the
President and procured by a government functionary
would have the effect of a blanket authority to
reorganize a bureau, office or agency attached to the
various executive departments;
‘b) The President of the Philippines would have the
plenary power to reorganize the entire government
Bureaucracy through the issuance of an Executive
Order, an administrative issuance without the benefit
of due deliberation, debate and discussion of members
of both chambers of the Congress of the Philippines;
‘c) The right to security of tenure to a career position
created by law or statute would be defeated by the
mere adoption of an Organizational Structure and
Staffing Pattern issued pursuant to an Executive Order
which is not a law and could thus not abolish an office
created by law;
"2. The case law on abolition of an office would be
disregarded, ignored and abandoned if the Court of Appeals
decision subject matter of this Petition would remain
undisturbed and untouched. In other words, previous
doctrines and precedents of this Highest Court would in effect
be reversed and/or modified with the Court of Appeals
judgment, should it remain unchallenged.
"3. Section 4 of Executive Order No. 245 dated July 24, 1987
(Annex ‘D,’ Petition), issued by the Revolutionary government
of former President Corazon Aquino, and the law creating
 NTA, which provides that the governing body of NTA is the
Board of Directors, would be rendered meaningless,
ineffective and a dead letter law because the challenged NTA
reorganization which was erroneously upheld by the Court of
Appeals was adopted and implemented by then NTA
Administrator Antonio de Guzman without the corresponding
authority from the Board of Directors as mandated therein. In
brief, the reorganization is an ultra vires act of the NTA
Administrator.
"4. The challenged Executive Order No. 29 issued by former
President Joseph Estrada but unsigned by then Executive
Secretary Ronaldo Zamora would in effect be erroneously
upheld and given legal effect as to supersede, amend and/or
modify Executive Order No. 245, a law issued during the
Freedom Constitution of President Corazon Aquino. In brief, a
mere executive order would amend, supersede and/or render
ineffective a law or statute."5
In order to allow the parties a full opportunity to ventilate their views
on the matter, the Court ultimately resolved to hear the parties in
oral argument. Essentially, the core question raised by them is
whether or not the President, through the issuance of an executive
order, can validly carry out the reorganization of the NTA.
Notwithstanding the apparent procedural lapse on the part of
petitioner to implead the Office of the President as party respondent
pursuant to Section 7, Rule 3, of the 1997 Revised Rules of Civil
Procedure, 6 this Court resolved to rule on the merits of the petition.
Buklod ng Kawaning EIIB vs. Zamora7 ruled that the President, based
on existing laws, had the authority to carry out a reorganization in any
branch or agency of the executive department. In said case, Buklod ng
Kawaning EIIB challenged the issuance, and sought the nullification,
of Executive Order No. 191 (Deactivation of the Economic Intelligence
111
and Investigation Bureau) and Executive Order No. 223
(Supplementary Executive Order No. 191 on the Deactivation of the
Economic Intelligence and Investigation Bureau and for Other
Matters) on the ground that they were issued by the President with
grave abuse of discretion and in violation of their constitutional right
to security of tenure. The Court explained:
"The general rule has always been that the power to abolish a public
office is lodged with the legislature. This proceeds from the legal
precept that the power to create includes the power to destroy. A
public office is either created by the Constitution, by statute, or by
authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that
brought it into existence.
"The exception, however, is that as far as bureaus, agencies or offices
in the executive department are concerned, the President’s power of
control may justify him to inactivate the functions of a particular
office, or certain laws may grant him the broad authority to carry out
reorganization measures. The case in point is Larin v. Executive
Secretary [280 SCRA 713]. In this case, it was argued that there is no
law which empowers the President to reorganize the BIR. In
decreeing otherwise, this Court sustained the following legal basis,
thus:
"`Initially, it is argued that there is no law yet which empowers the
President to issue E.O. No. 132 or to reorganize the BIR.
`We do not agree.
`x x x x x x
`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. x x x. 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.’
`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 changes. – Unless otherwise
created by law or directed by the President of the Philippines, no
organizational unit or changes in key positions in any department or
agency shall be authorized in their respective organization structures
and be funded from appropriations by this Act.’
`The foregoing provision evidently shows that the President is
authorized to effect organizational changes including the creation of
offices in the department or agency concerned.
`x x x x x x
`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
112
specifically enumerated above or which are not delegated by the
President in accordance with law.’
`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 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, letter 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.’
"Now, let us take a look at the assailed executive order.
"In the whereas clause of E.O. No. 191, former President Estrada
anchored his authority to deactivate EIIB on Section 77 of Republic
Act 8745 (FY 1999 General Appropriations Act), a provision similar to
Section 62 of R.A. 7645 quoted in Larin, thus:
"`Sec. 77. Organized Changes. – Unless otherwise provided by law
or directed by the President of the Philippines, no changes in key
positions or organizational units in any department or agency shall be
authorized in their respective organizational structures and funded
from appropriations provided by this Act.’
"We adhere to the x x x ruling in Larin that this provision recognizes
the authority of the President to effect organizational changes in the
department or agency under the executive structure. Such a ruling
further finds support in Section 78 of Republic Act No. 8760. Under
this law, the heads of departments, bureaus, offices and agencies and
other entities in the Executive Branch are directed (a) to conduct a
comprehensive review of this respective mandates, missions,
objectives, functions, programs, projects, activities and systems and
procedures; (b) identify activities which are no longer essential in the
delivery of public services and which may be scaled down, phased-out
or abolished; and (c) adopt measures that will result in the
streamlined organization and improved overall performance of their
respective agencies. Section 78 ends up with the mandate that the
actual streamlining and productivity improvement in agency
organization and operation shall be effected pursuant to Circulars or
Orders issued for the purpose by the Office of the President. The law
has spoken clearly. We are left only with the duty to sustain.
"But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of
the power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), ‘the President, subject to the policy
in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President.’ For this
purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado vs. Aguirre [323
SCRA 312], we ruled that reorganization ‘involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions.’ It takes place when there is an
alteration of the existing structure of government offices or units
therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of
Finance. It falls under the Office of the President. Hence, it is subject
to the President’s continuing authority to reorganize.
113
"It having been duly established that the President has the authority
to carry out reorganization in any branch or agency of the executive
department, what is then left for us to resolve is whether or not the
reorganization is valid. In this jurisdiction, reorganizations have been
regarded as valid provided they are pursued in good faith.
Reorganization is carried out in `good faith’ if it is for the purpose of
economy or to make bureaucracy more efficient. Pertinently,
Republic Act No. 6656 provides for the circumstances which may be
considered as evidence of bad faith in the removal of civil service
employees made as a result of reorganization, to wit: (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 classification of offices in the department or agency
concerned and the reclassified offices perform substantially the same
functions as the original offices, and (e) where the removal violates
the order of separation."8
The Court of Appeals, in its now assailed decision, has found no
evidence of bad faith on the part of the NTA; thus -
"In the case at bar, we find no evidence that the respondents
committed bad faith in issuing the notices of non-appointment to the
petitioners.
"Firstly, the number of positions in the new staffing pattern
did not increase. Rather, it decreased from 1,125 positions to
750. It is thus natural that one’s position may be lost through
the removal or abolition of an office.
"Secondly, the petitioners failed to specifically show which
offices were abolished and the new ones that were created
performing substantially the same functions.
 "Thirdly, the petitioners likewise failed to prove that less
qualified employees were appointed to the positions to which
they applied.
"x x x xxx xxx
"Fourthly, the preference stated in Section 4 of R.A. 6656, only
means that old employees should be considered first, but it
does not necessarily follow that they should then
automatically be appointed. This is because the law does not
preclude the infusion of new blood, younger dynamism, or
necessary talents into the government service, provided that
the acts of the appointing power are bonafide for the best
interest of the public service and the person chosen has the
needed qualifications."9
These findings of the appellate court are basically factual which this
Court must respect and be held bound.
It is important to emphasize that the questioned Executive Orders
No. 29 and No. 36 have not abolished the National Tobacco
Administration but merely mandated its reorganization through the
streamlining or reduction of its personnel. Article VII, Section 17,10 of
the Constitution, expressly grants the President control of all
executive departments, bureaus, agencies and offices which may
justify an executive action to inactivate the functions of a particular
office or to carry out reorganization measures under a broad
authority of law.11 Section 78 of the General Provisions of Republic
Act No. 8522 (General Appropriations Act of FY 1998) has decreed
that the President may direct changes in the organization and key
positions in any department, bureau or agency pursuant to Article VI,
Section 25,12 of the Constitution, which grants to the Executive
Department the authority to recommend the budget necessary for its
operation. Evidently, this grant of power includes the authority to
evaluate each and every government agency, including the
114
determination of the most economical and efficient staffing pattern,
under the Executive Department.
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo
D. Zamora, in his capacity as the Executive Secretary, et al.,13 this
Court has had occasion to also delve on the President’s power to
reorganize the Office of the President under Section 31(2) and (3) of
Executive Order No. 292 and the power to reorganize the Office of
the President Proper. The Court has there observed:
"x x x. Under Section 31(1) of EO 292, the President can reorganize
the Office of the President Proper by abolishing, consolidating or
merging units, or by transferring functions from one unit to another.
In contrast, under Section 31(2) and (3) of EO 292, the President’s
power to reorganize offices outside the Office of the President Proper
but still within the Office of the President is limited to merely
transferring functions or agencies from the Office of the President to
Departments or Agencies, and vice versa."
The provisions of Section 31, Book III, Chapter 10, of Executive Order
No. 292 (Administrative Code of 1987), above-referred to, reads
thusly:
"SEC. 31. Continuing Authority of the President to Reorganize his
Office. – The President, subject to the policy in the Executive Office
and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any of the
following actions:
"(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common Staff Support System, by abolishing, consolidating or
 merging units thereof or transferring functions from one unit
to another;
"(2) Transfer any function under the Office of the President to
any other Department or Agency as well as transfer functions
to the Office of the President from other Departments and
Agencies; and
"(3) Transfer any agency under the Office of the President to
any other department or agency as well as transfer agencies
to the Office of the President from other departments and
agencies."
The first sentence of the law is an express grant to the President of a
continuing authority to reorganize the administrative structure of the
Office of the President. The succeeding numbered paragraphs are not
in the nature of provisos that unduly limit the aim and scope of the
grant to the President of the power to reorganize but are to be
viewed in consonance therewith. Section 31(1) of Executive Order No.
292 specifically refers to the President’s power to restructure the
internal organization of the Office of the President Proper, by
abolishing, consolidating or merging units hereof or transferring
functions from one unit to another, while Section 31(2) and (3)
concern executive offices outside the Office of the President Proper
allowing the President to transfer any function under the Office of the
President to any other Department or Agency and vice-versa, and the
transfer of any agency under the Office of the President to any other
department or agency and vice-versa.14
In the present instance, involving neither an abolition nor transfer of
offices, the assailed action is a mere reorganization under the general
provisions of the law consisting mainly of streamlining the NTA in the
interest of simplicity, economy and efficiency. It is an act well within
the authority of President motivated and carried out, according to the
115
findings of the appellate court, in good faith, a factual assessment
that this Court could only but accept.15
In passing, relative to petitioners’ "Motion for an En Banc Resolution
of the Case," it may be well to remind counsel, that the Court En
Banc is not an appellate tribunal to which appeals from a Division of
the Court may be taken. A Division of the Court is the Supreme Court
as fully and veritably as the Court En Banc itself and a decision of its
Division is as authoritative and final as a decision of the Court En
Banc. Referrals of cases from a Division to the Court En Banc do not
take place as just a matter of routine but only on such specified
grounds as the Court in its discretion may allow.16
WHEREFORE, the Motion to Admit Petition for En Banc resolution and
the Petition for an En Banc Resolution are DENIED for lack of merit.
Let entry of judgment be made in due course. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ.,
concur.
Footnotes
1 Rollo, pp. 49-50.
2 Rollo, pp. 50-51.
3 Rollo, p. 14.
4 Rollo, pp. 50-51.
5 Rollo, pp. 140-141.
6 Section 7, Rule 3, 1997 Revised Rules of Civil Procedure
provides:
"Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants."
7 G.R. No. 142801-802, 10 July 2001, 360 SCRA 718.
8 At pp. 726-730.
9 Rollo,pp. 55-57.
10 SEC.17. The President shall have control of all the executive
departments, bureaus, and offices.1âwphi1 He shall ensure
that the laws be faithfully executed.
11 Buklod ng Kawaning EIIB vs. Zamora, Ibid.
12 Sec. 25. (1) The Congress may not increase the
appropriations recommended by the President for the
operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall
be supported by appropriate vouchers and subject to
such guidelines as may be prescribed by law.
(7) If, by the end of any fiscal year, the Congress shall
have failed to pass the general appropriations bill for
the ensuing fiscal year, the general appropriations law
for the preceding fiscal year shall be deemed
reenacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.
13 G.R. No. 142283, 06 February 2003.

be prescribed by law. 14 Canonizado vs. Aguirre, G. R. No. 133132, 25 January 2000,

(2) No provision or enactment shall be embraced in the 323 SCRA 312.

general appropriations bill unless it relates specifically 15 Dario vs. Mison, G. R. Nos. 81954, 81967, 82023, 83737,

to some particular appropriation therein. Any such 85310, 85335 & 86241, 08 August 1989, 176 SCRA 84.
provision or enactment shall be limited in its operation 16 Ortigas and Company Limited Partnership vs. Velasco, G. R.

to the appropriation to which it relates. Nos. 109645 & 112564, 04 March 1996, 254 SCRA 234.
(3) The procedure in approving appropriations for the
Congress shall strictly follow the procedure for
approving appropriations for other departments and
agencies.
(4) A special appropriations bill shall specify the
purpose for which it is intended, and shall be
supported by funds actually available as certified by
the National Treasurer, or to be raised by a
corresponding revenue proposal therein.
(5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
may, by law, be authorized to augment any item in the
general appropriations law for their respective offices
from savings in other items of their respective
appropriations.
(6) Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes to
116
 On June 17, 1994, P.D. No. 1752 was amended by Republic Act (R.A.)
Case List No. 1; Case 8 No. 7742 which took effect on January 1, 1995. Under the new law,
the coverage of the Fund extends to all members of the Social
SECOND DIVISION Security System and Government Service Insurance System, as well as
their employers. However, membership is voluntary for employees
G.R. No. 130584 June 27, 2006 earning less than P4,000.00 a month.

YAZAKI TORRES MANUFACTURING, INC., Petitioner,
vs.
THE COURT OF APPEALS, THE HOME DEVELOPMENT MUTUAL FUND,
through its Board of Trustees, and HONORABLE ZORAYDA AMELIA C.
ALONZO, in her capacity as President of the Home Development
Mutual Fund, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, seeking to annul the Decision1 of the Court
of Appeals (Special Eighth Division), dated February 5, 1997, in CA-
G.R. SP No. 41487 for having been issued with grave abuse of
discretion.
The Home Development Mutual Fund (HDMF) is the government
agency tasked with the administration of the PAG-IBIG2 Fund (Fund)
created under Presidential Decree (P.D.) No. 1530, signed into law on
June 11, 1978. The Fund has been intended for housing purposes to
be sourced from voluntary contributions from its members.
On July 18, 1994, the HDMF Board of Trustees promulgated Rules and
Regulations implementing R.A. No. 7742. Rule VII provides:
RULE VII
WAIVER OR SUSPENSION
SEC. 1. Waiver or Suspension, Existing Provident or Retirement Plan. –
An employer and/or employee group who has an existing provident
or retirement plan as of the effectivity of Republic Act No. 7742,
qualified under Republic Act No. 4917 and actuarially determined to
be sound and reasonable by an independent actuary duly accredited
by the Insurance Commission may apply with the Fund for waiver or
suspension of coverage. Such waiver or suspension may be granted
by the President of the Fund on the basis of verification that the
waiver or suspension does not contravene any effective collective
bargaining or other existing agreement and that the features of the
plan or plans are superior to the Fund and continue to be so. The
certificate of waiver or suspension of coverage issued therein shall
only be for a period of one (1) year but the same may be renewed for
another year upon the filing of a proper application within a period of
sixty (60) days prior to the expiration of the existing waiver or
suspension.

On December 14, 1980, P.D. No. 1530 was amended by P.D. No. 1752
providing that membership in the Fund is mandatory for all gainfully-
employed Filipinos.
117
SEC. 2. Waiver or Suspension, Existing Housing Plan. – An employer
and/or employee group who has an existing housing plan as of the
effectivity of Republic Act No. 7742 may apply with the Fund for
waiver or suspension of coverage. Such waiver or suspension may be
granted by the President of the Fund on the basis of verification that
the waiver or suspension does not contravene any effective collective
bargaining or other existing agreement and that the features of the
plan or plans are superior to the Fund and continue to be so. The
certificate of waiver or suspension of coverage issued therein shall
only be for a period of one (1) year but the same may be renewed for
another year upon the filing of a proper application within a period of
sixty (60) days prior to the expiration of the existing waiver or
suspension.
xxx
SEC. 4. Effects of Waiver or Suspension, Existing Provident or
Retirement/Housing Plan. - Waiver or suspension of coverage granted
to an employer under Sections 1 and 2 of this Rule shall likewise apply
to his employees who are members of the employer’s private
plan; Provided, That such members are not member-borrowers of the
Fund. A member-borrower shall continue to pay and remit to the
fund his monthly contributions together with the employer
contributions to be shouldered by him. A member-saver may opt to
remain in good standing by remitting to the Fund his monthly
contributions with or without employer contribution.
Employees who are non-members of the employer’s private plan at
the time of the certificate of waiver or suspension of coverage is
granted shall continue to be mandatorily covered by the Fund and
their employer is required to set aside and remit to the Fund the
employee contributions together with the employer contributions.
Yazaki Torres Manufacturing, Inc., petitioner herein, a corporation
organized under Philippine laws, applied for and was granted by the
HDMF a waiver from the Fund coverage for the period from January 1
to December 31, 1995. The HDMF found that petitioner’s retirement
plan for its employees is superior to that offered by the Fund.
118
On September 1, 1995, the HDMF Board of Trustees amended Rule
VII of the Rules and Regulations implementing R.A. No. 7742. The
amended Rule provides:
SEC. 1. Waiver or Suspension Because of Existing
Provident/Retirement and Housing Plan. – An employer with a plan
providing both for a provident/retirement and housing benefits for all
his employees and existing as of December 14, 1980, the effectivity
date of Presidential Decree No. 1752, may apply with the Fund for
waiver or suspension of the coverage. The provident/retirement
aspect of the plan must be qualified under Republic Act No. 4917 and
actuarially determined to be sound and reasonable by an
independent actuary duly accredited by the Insurance Commission.
The provident/retirement and housing benefits as provided for under
the plan must be superior to the provident/retirement and housing
benefits offered by the Fund.
Such waiver or suspension may be granted by the Fund on the basis
of actual certification that the waiver or suspension does not
contravene any collective bargaining agreement, any other existing
agreement or clearly spelled out management policy and that
features of the plan or plans are superior to the Fund and continue to
be so.
Provided further, That the application must be endorsed by the labor
union representing a majority of the employees or in the absence
thereof by at least a majority vote for all the employees in the said
establishment in a meeting specifically called for the
purpose; Provided furthermore, That such a meeting be held or
conducted under the supervision of an authorized representative
from the Fund.
The certificate of waiver or suspension of coverage issued herein shall
only be for a period of one (1) year effective upon issuance thereof.
No certificate of waiver issued by the President of the Fund shall have
retroactive effect. Application for renewal must be filed within sixty
(60) days prior to the expiration of the existing waiver or suspension
and such application for renewal shall only be granted based on the
same conditions and requirements under which the original
application was approved.
Pending the approval of the application for waiver or suspension of
coverage or the application for renewal, the employer and his
covered employees shall continue to be mandatorily covered by the
Fund as provided for under Republic Act No. 7742.
xxx
SEC. 3. Effects of Waiver or Suspension; Existing Provident or
Retirement/Housing Plan. – Waiver or suspension of coverage
granted to an employer under Section 1 shall likewise apply to his
employees who are members of the employer’s private
plan; Provided, That such members are not member-borrowers of the
Fund. A member-borrower shall continue to pay and remit to the
Fund his monthly contributions together with the employer
contribution to be shouldered by him. A member-saver may opt to
remain in good standing by remitting to the Fund his monthly
contributions with or without employer contributions.
Notwithstanding the certificate of waiver or suspension granted to
the employer, it is still the obligation of the employer to service this
type of contributing employee-member by deducting through salary
deductions and remitting to the Fund the contribution as required
herein.
Employees who are non-members of the employer’s private plan at
the time the certificate of waiver or suspension of coverage is granted
shall continue to be mandatorily covered by the Fund and their
employer is required to set aside and remit to the Fund the employee
contributions together with the employer’s required contributions.
119
xxx
After its waiver from the Fund coverage lapsed, petitioner applied for
a renewal. The ground relied upon was once again its "superior
retirement plan" to that of the Fund.
On February 16, 1996, the HDMF Chief Executive Officer disapproved
petitioner’s application on the ground that its retirement plan is not
superior to that provided by the Fund. Petitioner was then directed
"to register its employees with the Fund and to remit their monthly
contributions together with the mandatory employer’s share."
Petitioner interposed an appeal to the HDMF Board of Trustees, but
in a Resolution dated May 29, 1996, the Board denied the appeal.
Thereupon, petitioner filed with the Court of Appeals a petition for
review, docketed as CA-G.R. SP No. 41487.
In a Decision dated February 5, 1997, the Court of Appeals (Special
Eighth Division) denied the petition, holding that:
Petitioner contends that the existing rules and regulations cannot be
amended unless and until R.A. No. 7742 is likewise amended and
since the September 1, 1995 amendment on Rule VII of the HDMF
rules and regulations was beyond the 60-day period required under
Section 5 of R.A. No. 7742, the same is invalid. To uphold these
arguments would render the administrative agency inutile to correct
the rules and regulations duly promulgated by it. A contario, such
rules and regulations or orders may be amended, modified or
revoked to conform to the requirements of the law or the demands of
justice (Benito v. Public Service Commission, 86 Phil. 624 [1950];
Raymundo Transportation Co. v. Tanay Transit Co., 63 Phil. 1064
[1936]). The only limitation is that the administrative regulations
cannot extend the law and amend a legislative enactment for settled
is the rule that administrative regulations must be in harmony with
the provisions of the law (Land Bank of the Philippines v. Court of
Appeals, 249 SCRA 149 [1995]). In case of discrepancy between the
basic law and an implementing rule or regulation, the former prevails
(Shell Philippines, Inc. v. Central Bank of the Philippines, 162 SCRA
628 [1988]).
The September 1, 1995 amendment to the rules requiring both
provident/retirement and housing plans to the employees in order
that the employer may be granted a waiver or suspension of the Pag-
ibig Fund coverage is in harmony with WHEREAS clauses of
Presidential Decree No. 1752, thus:
WHEREAS, the Government, in pursuit of the Constitutional mandates
on the promotion of public welfare through ample social services, as
well as its humanist commitment to the interests of the working
group, in relation particularly to their need for decent shelter has
established the Home Development Mutual Fund, under Presidential
Decree 1530, a system of employee – employer contributions for
housing purposes; and
WHEREAS, there is need to strengthen the Home Development
Mutual Funds and make it more effective both as savings generation
and home building program for the gainfully-employed members of
the Philippine society; (Emphasis supplied)
The governing law which is Section 19 of Pres. Decree No. 1752
states:lavvphi1.net
SEC. 19. Existing Provident/Housing Plans – An employer and/or
employee – group who, at the time this Decree becomes effective
have their own provident and/or employee – housing plans, may
register with the Fund, for any of the following purposes:
(a) For annual certification of waiver or suspension from coverage or
participation in the Fund, which shall be granted on the basis of
120
verification that the waiver or suspension does not contravene any
effective collective bargaining agreement and that the features of the
plan or plans are superior to the Fund or continue to be so; or
xxxxxxxxx
x x x The grant of the certification of waiver to the petitioner was only
for a specific period, i.e., from January 1, 1995 to December 31, 1995
but subject to the condition that the same may be renewed for
another year upon the filing of the proper application within 60 days
prior to the expiration of the existing waiver or suspension. The grant
is merely a privilege which the State in the exercise of its police power
has the right not to renew the same as the exigency of the case
warrants. After the lapse of the specified period, the HDMF is not
automatically required to enter another contract with the petitioner
as long as the latter applies for renewal of certification. To reiterate,
Section 1 of the original HDMF rules, the law in force at the time of
the granting of the certification of waiver to the petitioner, provides
"[s]uch waiver or suspension may be granted by the President of the
Fund on the basis of verification that the waiver or suspension does
not contravene any effective collective bargaining or other existing
agreement and that the features of the plan or plans are superior to
the Fund and continue to be so." The word "may" is merely
permissive and operates to confer discretion upon a party (Capati v.
Ocampo, 113 SCRA 794 [1982]). The disapproval of the petitioner’s
application for renewal of waiver from the Pag-ibig Fund coverage
was by reason that the petitioner’s retirement plan was not superior
to Pag-ibig Fund (Annex "D", Petition, p. 30, Rollo). It is well-settled
principle that the finding of facts by the administrative bodies which
has acquired the expertise in the field is entitled to great respect and,
should not be disturbed on appeal unless it is shown that it has
patently misappreciated the facts. Petitioner however failed to prove
by sufficient evidence that the findings of the President of the Fund
was patently erroneous.3
Petitioner filed its Motion for Reconsideration, but it was denied in a
Resolution dated June 17, 1997.
Hence, the instant petition for certiorari.4
Petitioner contends that the Court of Appeals acted with grave abuse
of discretion in upholding the HDMF’s Resolution denying petitioner’s
application for renewal of waiver of the Fund membership coverage;
and in confirming the authority of the HDMF to amend the
implementing Rules of the Fund. It claims that Section 5 of R.A. No.
7742 does not grant HDMF the power to amend the implementing
Rules and Regulations, contending that "the power to make laws does
not necessarily include the power to alter or repeal the same." Since
the HDMF is merely an administrative agency tasked to implement
the law, its authority to promulgate implementing Rules does not
include the power to amend or revise them.
It is a doctrine of long-standing that courts will not interfere in
matters which are addressed to the sound discretion of the
government agency entrusted with regulation of activities coming
under the special and technical training and knowledge of such
agency.5 For the exercise of administrative discretion is a policy
decision and a matter that best be discharged by the government
agency concerned and not by the courts.6 In this case, there is no
showing that the HDMF arbitrarily, whimsically or capriciously denied
petitioner’s application for renewal of its waiver. It conducted the
necessary investigation, comparison, evaluation, and deliberation of
petitioner’s retirement plan vis-à-vis the Fund. This Court thus holds
that the Court of Appeals committed no grave abuse of discretion
amounting to lack or excess of jurisdiction when it affirmed the denial
of petitioner’s application for renewal of waiver by the HDMF.
Moreover, the grant of waiver or exemption from the coverage of the
Fund is but a mere privilege granted by the State. A privilege is a
particular and peculiar benefit or advantage enjoyed by a person,
121
company, or class beyond the common advantages of other
citizens.7 Like any other privilege or exemption, it may be withdrawn
by the State on a finding that the recipient is no longer entitled to it.
There is no provision whatsoever in R.A. No. 7742 or its Implementing
Rules and Regulations that the HDMF shall automatically renew a
waiver from the Fund coverage upon an application for renewal. The
task of determining whether such application should be granted is
best discharged by the HDMF, not by the courts. Absent a showing
that the denial of petitioner’s application by the HDMF is tainted by
caprice, arbitrariness, or despotism, this Court will not interfere in the
exercise of its discretion.
Petitioner claims that under the original Implementing Rules and
Regulations of the HDMF, superior retirement plan and superior
housing plan were separate and alternative grounds for the waiver of
the Fund coverage. However, under the Amended Rules and
Regulations, superior retirement plan and superior housing plan are
joint requirements. Since petitioner does not have a housing plan,
this is the reason why its retirement plan was not considered superior
to that of the Fund. Hence, its application for renewal of waiver was
denied. Consequently, it insists that the HDMF exceeded its authority
when it amended its original Rules and Regulations.
The legislative power is granted pursuant to Section 1, Article VI of
the Constitution which provides:
SEC. 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.
The legislative power has been described generally as the power to
make, alter, and repeal laws.8 The authority to amend, change, or
modify a law is thus part of such legislative power. It is the peculiar
province of the legislature to prescribe general rules for the
government of society. However, the legislature cannot foresee every
contingency involved in a particular problem that it seeks to address.
Thus, it has become customary for it to delegate to instrumentalities
of the executive department, known as administrative agencies, the
power to make rules and regulations. This is because statutes are
generally couched in general terms which express the policies,
purposes, objectives, remedies and sanctions intended by the
legislature. The details and manner of carrying out the law are left to
the administrative agency charged with its implementation. In this
sense, rules and regulations promulgated by an administrative agency
are the product of a delegated power to create new or additional
legal provisions that have the effect of law.9 Hence, in general, rules
and regulations issued by an administrative agency, pursuant to the
authority conferred upon it by law, have the force and effect, or
partake of the nature, of a statute.10
The law delegated to the HDMF the rule-making power since this is
necessary for the proper exercise of its authority to administer the
Fund. Following the doctrine of necessary implication, this grant of
express power to formulate implementing rules and regulations must
necessarily include the power to amend, revise, alter, or repeal the
same.
WHEREFORE, the petition is DISMISSED. The Decision and Resolution
of the Court of Appeals dated February 5 and July 17, 1997 in CA-G.R.
SP No. 41487 are AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
Footnotes
122
1 Rollo, pp. 36-54. Ponencia by Associate Justice Corona Ibay-
Somera (retired), with Associate Justice Romeo J. Callejo, Sr.
(now a member of this Court), and Associate Justice Salvador
J. Valdez, Jr. (retired), concurring.
2 The acronym stands for "PAGTUTULUNGAN SA
KINABUKASAN: IKAW, BANGKO, INDUSTRIYA, GOBYERNO."
3 Rollo, pp. 46-49, 52-53.
4 What petitioner should have filed was a petition for review
on certiorari. Considering that this Court required private
respondents to file their comment on the petition, and in the
interest of justice, the same is given due course.
5 Republic v. Express Telecommunications Co., Inc., G.R. Nos.
147096 & 147210, January 15, 2002, 373 SCRA 316, 346,
citing Concerned Officials of the Metropolitan Waterworks &
Sewerage System (MWSS) v. Vasquez, 240 SCRA 502 (1995).
6 First Lepanto Ceramics, Inc. v. Court of Appeals, G.R. No.
117680, February 9, 1996, 253 SCRA 552, 558, citing Bureau
Veritas v. Office of the President, 205 SCRA 705 (1992).
7 Black’s Law Dictionary (6th Ed. 1990) 1197.
8 Occeña v. Commission on Elections, G.R. No. 52265, January
28, 1980, 95 SCRA 755, 759.
9 Victorias Milling Co., Inc. v. Social Security Commission, 114
Phil. 555, 558 (1962).
10 Commissioner of Internal Revenue v. Solidbank Corp., G.R.
No. 148191, November 25, 2003, 416 SCRA 436, 448,
citing Victorias Milling Co., Inc, v. Social Security Commission,
supra.
 The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court,

challenging the November 16, 2001 Decision2 and the March 8, 2002
Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 58987. The
Case List No. 1; Case 9 Assailed Decision disposed as follows:

EN BANC "WHEREFORE, the petition for review is DENIED for lack of

merit."4
G.R. No. 152574 November 17, 2004
The challenged Resolution denied petitioner's Motion for
FRANCISCO ABELLA JR., petitioner, Reconsideration.
vs.
CIVIL SERVICE COMMISSION, respondent. The Facts

The CA narrates the factual antecedents in this wise:

"Petitioner Francisco A. Abella, Jr., a lawyer, retired from the

DECISION
PANGANIBAN, J.:
Both the appointing authority and the appointee are the real parties
in interest, and both have legal standing, in a suit assailing a Civil
Service Commission (CSC) order disapproving an appointment.
Despite having legal interest and standing, herein petitioner
unsuccessfully challenges the constitutionality of the CSC circular that
classifies certain positions in the career service of the government. In
sum, petitioner was appointed to a Career Executive Service (CES)
position, but did not have the corresponding eligibility for it; hence,
the CSC correctly disapproved his appointment.
123
Export Processing Zone Authority (EPZA), now the Philippine
Economic Zone Authority (PEZA), on July 1, 1996 as
Department Manager of the Legal Services Department. He
held a civil service eligibility for the position of Department
Manager, having completed the training program for
Executive Leadership and Management in 1982 under the Civil
Service Academy, pursuant to CSC Resolution No. 850 dated
April 16, 1979, which was then the required eligibility for said
position.
"It appears, however, that on May 31, 1994, the Civil Service
Commission issued Memorandum Circular No. 21, series of
1994, the pertinent provisions of which read:
'1. Positions Covered by the Career Executive Service
xxx xxx xxx
(b) In addition to the above identified positions and other
positions of the same category which had been previously
classified and included in the CES, all other third level
positions of equivalent category in all branches and
instrumentalities of the national government, including
government owned and controlled corporations with original
charters are embraced within the Career Executive Service
provided that they meet the following criteria:
'1. the position is a career position;
'2. the position is above division chief level
'3. the duties and responsibilities of the position
require the performance of executive or managerial
functions.
'4. Status of Appointment of Incumbents of Positions
Included Under the Coverage of the CES. Incumbents
of positions which are declared to be Career Executive
Service positions for the first time pursuant to this
Resolution who hold permanent appointments thereto
shall remain under permanent status in their
respective positions. However, upon promotion or
transfer to other Career Executive Service (CES)
positions, these incumbents shall be under temporary
status in said other CES positions until they qualify.'
"Two years after his retirement, petitioner was hired by the
Subic Bay Metropolitan Authority (SBMA) on a contractual
basis. On January 1, 1999, petitioner was issued by SBMA a
permanent employment as Department Manager III, Labor
and Employment Center. However, when said appointment
was submitted to respondent Civil Service Commission
Regional Office No. III, it was disapproved on the ground that
124
petitioner's eligibility was not appropriate. Petitioner was
advised by SBMA of the disapproval of his appointment. In
view thereof, petitioner was issued a temporary appointment
as Department Manager III, Labor and Employment Center,
SBMA on July 9, 1999.
"Petitioner appealed the disapproval of his permanent
appointment by respondent to the Civil Service Commission,
which issued Resolution No. 000059, dated January 10, 2000,
affirming the action taken by respondent. Petitioner's motion
for reconsideration thereof was denied by the CSC in
Resolution No. 001143 dated May 11, 2000."
"x x x xxx xxx
"Undaunted, petitioner filed with [the CA] a petition for
review seeking the reversal of the CSC Resolutions dated
January 10, 2000 and May 11, 2000 on the ground that CSC
Memorandum Circular No. 21, s. 1994 is unconstitutional as it
rendered his earned civil service eligibility ineffective or
inappropriate for the position of Department Manager [III]"5
Ruling of the Court of Appeals
The CA shunned the issue of constitutionality, arguing that a
constitutional question should not be passed upon if there are other
grounds upon which the case may be decided.6 Citing CSC
Memorandum Circular 40, s. 1998 and Mathay v. Civil Service
Commission,7 the appellate court ruled that only the appointing
officer may request reconsideration of the action taken by the CSC on
appointments. Thus, it held that petitioner did not have legal standing
to question the disapproval of his appointment.8
On reconsideration, the CA added that petitioner was not the real
party in interest, as his appointment was dependent on the CSC's
approval. Accordingly, he had no vested right in the office, since his
appointment was disapproved.9
Unsatisfied, petitioner brought this recourse to this Court.10
The Issues
Petitioner raises the following issues for our consideration:
"A. Whether or not Respondent Court committed grave abuse
of discretion amounting to lack of jurisdiction in ruling that
petitioner lacks the personality to question the disapproval by
respondent office of petitioner's appointment as Department
Manager III, Labor and Employment Center, SBMA.
"B. Whether or not Respondent Court committed grave abuse
of discretion amounting to lack of jurisdiction in ruling that
petitioner is not the real party in interest to question the
disapproval by respondent office of petitioner's appointment
as Department Manager III, Labor and Employment Center,
SBMA.
"C. Whether or not Respondent Court committed grave abuse
of discretion amounting to lack of jurisdiction, in dismissing
petitioner's appeal on a mere technicality considering that
petitioner is questioning the constitutionality of respondent
office' issuance of Section 4 of CSC Memorandum Circular No.
21, s. 1994, which deprived petitioner his property right
without due process of law."11
The Court's Ruling
The Petition is partly meritorious.
First Issue:
125
Who May File Reconsideration or Appeal
Preliminary Observation
Petitioner imputes to the CA "grave abuse of discretion amounting to
lack of jurisdiction" for ruling that he had no legal standing to contest
the disapproval of his appointment.12 Grave abuse of discretion is a
ground for a petition for certiorari under Rule 65 of the Rules of
Court. Nevertheless, this Court resolved to grant due course to the
Petition and to treat it appropriately as a petition for review on
certiorari under Rule 45 of the Rules of Court. The grounds shall be
deemed "reversible errors," not "grave abuse of discretion."
Approval Required for
Permanent Appointment
A permanent appointment in the career service is issued to a person
who has met the requirements of the position to which the
appointment is made in accordance with the provisions of law, the
rules and the standards promulgated pursuant thereto.13 It implies
the civil service eligibility of the appointee.14 Thus, while the
appointing authority has the discretion to choose whom to appoint,
the choice is subject to the caveat that the appointee possesses the
required qualifications.15
To make it fully effective, an appointment to a civil service position
must comply with all legal requirements.16 Thus, the law requires the
appointment to be submitted to the CSC which will ascertain, in the
main, whether the proposed appointee is qualified to hold the
position and whether the rules pertinent to the process of
appointment were observed.17 The applicable provision of the Civil
Service Law reads:
 "SECTION 9. Powers and Functions of the Commission. — The
Commission shall administer the Civil Service and shall have
the following powers and functions:
"x x x xxx xxx
"(h) Approve all appointments, whether original or
promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess the
appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon issue by the
appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved
by the Commission, if this should take place, without prejudice
to the liability of the appointing authority for appointments
issued in violation of existing laws or rules: Provided, finally,
That the Commission shall keep a record of appointments of
all officers and employees in the civil service. All appointments
requiring the approval of the Commission as herein provided,
shall be submitted to it by the appointing authority within
thirty days from issuance, otherwise, the appointment
becomes ineffective thirty days thereafter."18
The appointing officer and the CSC acting together, though not
concurrently but consecutively, make an appointment complete.19 In
acting on the appointment, the CSC determines whether the
appointee possesses the appropriate civil service eligibility or the
required qualifications. If the appointee does, the appointment must
be approved; if not, it should be disapproved.20 According to the
appellate court, only the appointing authority had the right to
challenge the CSC's disapproval. It relied on Section 2 of Rule VI of
CSC Memorandum Circular 40, s. 1998 (Omnibus Rules on
Appointment and Other Personal Actions), which provides:
126
"Section 2. Request for Reconsideration of, or appeal from,
the disapproval of an appointment may be made by the
appointing authority and submitted to the Commission within
fifteen (15) calendar days from receipt of the disapproved
appointment."
Appointing Authority's Right to
Challenge CSC Disapproval
While petitioner does not challenge the legality of this provision, he
now claims that it is merely a technicality, which does not prevent
him from requesting reconsideration.
We clarify. The power of appointment necessarily entails the exercise
of judgment and discretion.21 Luego v. Civil Service
22
Commission declared:
"Appointment is an essentially discretionary power and must
be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that
there are others better qualified who should have been
preferred. This is a political question involving considerations
of wisdom which only the appointing authority can decide."23
Significantly, "the selection of the appointee -- taking into account the
totality of his qualifications, including those abstract qualities that
define his personality -- is the prerogative of the appointing
authority."24 No tribunal, not even this Court,25 may compel the
exercise of an appointment for a favored person.26
The CSC's disapproval of an appointment is a challenge to the
exercise of the appointing authority's discretion. The appointing
authority must have the right to contest the disapproval. Thus,
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 is
justified insofar as it allows the appointing authority to request
reconsideration or appeal.
In Central Bank v. Civil Service Commission,27 this Court has affirmed
that the appointing authority stands to be adversely affected when
the CSC disapproves an appointment. Thus, the said authority can
"defend its appointment since it knows the reasons for the same."28 It
is also the act of the appointing authority that is being questioned
when an appointment is disapproved.29
Appointee's Legal Standing to
Challenge the CSC Disapproval
While there is justification to allow the appointing authority to
challenge the CSC disapproval, there is none to preclude the
appointee from taking the same course of action. Aggrieved parties,
including the Civil Service Commission, should be given the right to
file motions for reconsideration or to appeal.30 On this point, the
concepts of "legal standing" and "real party in interest" become
relevant.
Although commonly directed towards ensuring that only certain
parties can maintain an action, "legal standing" and "real party in
interest" are different concepts. Kilosbayan v. Morato31 explained:
"The difference between the rule on standing and real party-
in-interest has been noted by authorities thus: 'It is important
to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions
relating to whether a particular plaintiff is the real party-in-
interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain
parties can maintain an action, standing restrictions require a
partial consideration of the merits, as well as broader policy
127
concerns relating to the proper role of the judiciary in certain
areas. (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE
328 [1985])
"Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers or voters
who actually sue in the public interest. Hence the question in
standing is whether such parties have 'alleged such a personal
stake in the outcome of the controversy to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for
illumination of difficult constitutional questions.' (Baker v.
Carr, 369 U.S. 186, 7 L. Ed. 2d 633 (1962))
"x x x xxx xxx
"On the other hand, the question as to 'real party-in-interest'
is whether he is 'the party who would be [benefited] or
injured by the judgment, or the 'party entitled to the avails of
the suit.' (Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125,
131 [1951])"32
If legal standing is granted to challenge the constitutionality or
validity of a law or governmental act despite the lack of personal
injury on the challenger's part, then more so should petitioner be
allowed to contest the CSC Order disapproving his appointment.
Clearly, he was prejudiced by the disapproval, since he could not
continue his office.
Although petitioner had no vested right to the position,33 it was his
eligibility that was being questioned. Corollary to this point, he should
be granted the opportunity to prove his eligibility. He had a personal
stake in the outcome of the case, which justifies his challenge to the
CSC act that denied his permanent appointment.
The Appointee a Real
Party in Interest
A real party in interest is one who would be benefited or injured by
the judgment, or one entitled to the avails of the suit.34 "Interest"
within the meaning of the rule means material interest or an interest
in issue and to be affected by the decree, as distinguished from mere
interest in the question involved or a mere incidental
interest.35 Otherwise stated, the rule refers to a real or present
substantial interest as distinguished from a mere expectancy; or from
a future, contingent, subordinate, or consequential interest.36 As a
general rule, one who has no right or interest to protect cannot
invoke the jurisdiction of the court as a party-plaintiff in an action.37
Although the earlier discussion demonstrates that the appointing
authority is adversely affected by the CSC's Order and is a real party in
interest, the appointee is rightly a real party in interest too. He is also
injured by the CSC disapproval, because he is prevented from
assuming the office in a permanent capacity. Moreover, he would
necessarily benefit if a favorable judgment is obtained, as an
approved appointment would confer on him all the rights and
privileges of a permanent appointee.
Appointee Allowed
Procedural Relief
Section 2 of Rule VI of CSC Memorandum Circular 40, s. 1998 should
not be interpreted to restrict solely to the appointing authority the
right to move for a reconsideration of, or to appeal, the disapproval
of an appointment. PD 807 and EO 292, from which the CSC derives
the authority to promulgate its rules and regulations, are silent on
whether appointees have a similar right to file motions for
128
reconsideration of, or appeals from, unfavorable decisions involving
appointments. Indeed, there is no legislative intent to bar appointees
from challenging the CSC's disapproval.
The view that only the appointing authority may request
reconsideration or appeal is too narrow. The appointee should have
the same right. Parenthetically, CSC Resolution 99-193638 recognizes
the right of the adversely affected party to appeal to the CSC Regional
Offices prior to elevating a matter to the CSC Central Office.39 The
adversely affected party necessarily includes the appointee.
This judicial pronouncement does not override Mathay v. Civil Service
Commission,40 which the CA relied on. The Court merely noted in
passing -- by way of obiter -- that based on a similar provision,41 only
the appointing officer could request reconsideration of actions taken
by the CSC on appointments.
In that case, Quezon City Mayor Ismael A. Mathay Jr. sought the
nullification of CSC Resolutions that recalled his appointment of a city
government officer. He filed a Petition assailing the CA Decision,
which had previously denied his Petition for Certiorari for being the
wrong remedy and for being filed out of time. We observed then that
the CSC Resolutions were already final and could no longer be
elevated to the CA.42 Furthermore, Mathay's Petition for Certiorari
filed with the CA was improper, because there was an available
remedy of appeal. And the CSC could not have acted without
jurisdiction, considering that it was empowered to recall an
appointment initially approved.43
The right of the appointee to seek reconsideration or appeal was not
the main issue in Mathay. At any rate, the present case is being
decided en banc, and the ruling may reverse previous doctrines laid
down by this Court.44
Second Issue:
Constitutionality of Section 4, CSC Memorandum Circular 21, Series
of 1994
Alleging that his civil service eligibility was rendered ineffective and
that he was consequently deprived of a property right without due
process,45 petitioner challenges the constitutionality of CSC
Memorandum Circular 21, s. 1994.46 The pertinent part of this Circular
reads:
"1. Positions Covered by the Career Executive Service.
"(a) The Career Executive Service includes the positions
of Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director
(department-wide and bureau-wide), Assistant
Regional Director (department-wide and bureau-wide)
and Chief of Department Service[.]
"(b) In addition to the above identified positions and
other positions of the same category which had been
previously classified and included in the CES, all other
third level positions in all branches and
instrumentalities of the national government, including
government-owned or controlled corporations with
original charters are embraced within the Career
Executive Service provided that they meet the
following criteria:
"1. the position is a career position;
"2. the position is above division chief level;
"3. the duties and responsibilities of the
position require the performance of executive
or managerial functions."
129
xxx xxx xxx
"4. Status of Appointment of Incumbents of Positions Under
the Coverage of the CES. Incumbents of positions which are
declared to be Career Executive Service positions for the first
time pursuant to this Resolution who hold permanent
appointments thereto shall remain under permanent status in
their respective positions. However, upon promotion or
transfer to other Career Executive Service (CES) positions,
these incumbents shall be under temporary status in said
other CES positions until they qualify."
Petitioner argues that his eligibility, through the Executive Leadership
and Management (ELM) training program, could no longer be
affected by a new eligibility requirement. He claims that he was
eligible for his previous position as department manager of the Legal
Services Department, PEZA; hence, he should retain his eligibility for
the position of department manager III, Labor and Employment
Center, SBMA, notwithstanding the classification of the latter as a CES
position.
CSC Authorized to Issue
Rules and Regulations
The Constitution mandates that, as "the central personnel agency of
the government,"47 the CSC should "establish a career service and
adopt measures to promote the morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the Civil
Service."48 It further requires that appointments in the civil service be
made only through merit and fitness to be determined by competitive
examination.49 Civil Service laws have expressly empowered the CSC
to issue and enforce rules and regulations to carry out its mandate.
In the exercise of its authority, the CSC deemed it appropriate to
clearly define and identify positions covered by the Career Executive
Service.50 Logically, the CSC had to issue guidelines to meet this
objective, specifically through the issuance of the challenged Circular.
Career Service
Classified by Levels
Positions in the career service, for which appointments require
examinations, are grouped into three major levels:
"(a) The first level shall include clerical, trades, crafts, and
custodial service positions which involve non-professional or
sub[-]professional work in a non-supervisory or supervisory
capacity requiring less than four years of collegiate studies;
"(b) The second level shall include professional, technical, and
scientific positions which involve professional, technical, or
scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to Division
Chief level; and
"(c) The third level shall cover positions in the Career
Executive Service."51
Entrance to the different levels requires the corresponding civil
service eligibility. Those in the third level (CES positions) require
Career Service Executive Eligibility (CSEE) as a requirement for
permanent appointment.52
The challenged Circular did not revoke petitioner's ELM eligibility. He
was appointed to a CES position; however, his eligibility was
inadequate. Eligibility must necessarily conform to the requirements
of the position, which in petitioner's case was a CSEE.
Rights Protected
130
The challenged Circular protects the rights of incumbents as long as
they remain in the positions to which they were previously appointed.
They are allowed to retain their positions in a permanent capacity,
notwithstanding the lack of CSEE. Clearly, the Circular recognizes the
rule of prospectivity of regulations;53 hence, there is no basis to argue
that it is an ex post facto law54 or a bill of attainder.55 These terms,
which have settled meanings in criminal jurisprudence, are clearly
inapplicable here.
The government service of petitioner ended when he retired in 1996;
thus, his right to remain in a CES position, notwithstanding his lack of
eligibility, also ceased. Upon his reemployment56 years later as
department manager III at SBMA in 2001, it was necessary for him to
comply with the eligibility prescribed at the time for that position.
Security of Tenure
Not Impaired
The argument of petitioner that his security of tenure is impaired is
unconvincing. First, security of tenure in the Career Executive Service
-- except in the case of first and second level employees in the civil
service -- pertains only to rank, not to the position to which the
employee may be appointed.57 Second, petitioner had neither rank
nor position prior to his reemployment. One cannot claim security of
tenure if one held no tenure prior to appointment.
Due Process
Not Violated
Petitioner contends that his due process rights, as enunciated in Ang
Tibay v. Court of Appeals,58 were violated.59 We are not convinced. He
points in particular to the CSC's alleged failure to notify him of a
hearing relating to the issuance of the challenged Circular.
The classification of positions in career service was a quasi-legislative,
not a quasi-judicial, issuance. This distinction determines whether
prior notice and hearing are necessary.
In exercising its quasi-judicial function, an administrative body
adjudicates the rights of persons before it, in accordance with the
standards laid down by the law.60 The determination of facts and the
applicable law, as basis for official action and the exercise of judicial
discretion, are essential for the performance of this function. 61 On
these considerations, it is elementary that due process requirements,
as enumerated in Ang Tibay, must be observed. These requirements
include prior notice and hearing.62
On the other hand, quasi-legislative power is exercised by
administrative agencies through the promulgation of rules and
regulations within the confines of the granting statute and the
doctrine of non-delegation of certain powers flowing from the
separation of the great branches of the government.63 Prior notice to
and hearing of every affected party, as elements of due process, are
not required since there is no determination of past events or facts
that have to be established or ascertained. As a general rule, prior
notice and hearing are not essential to the validity of rules or
regulations promulgated to govern future conduct.64
Significantly, the challenged Circular was an internal matter
addressed to heads of departments, bureaus and agencies. It needed
no prior publication, since it had been issued as an incident of the
administrative body's power to issue guidelines for government
officials to follow in performing their duties.65
Final Issue:
Disapproval of Appointment
131
Since petitioner had no CES eligibility, the CSC correctly denied his
permanent appointment. The appointee need not have been
previously heard, because the nature of the action did not involve the
imposition of an administrative disciplinary measure.66 The CSC, in
approving or disapproving an appointment, merely examines the
conformity of the appointment with the law and the appointee's
possession of all the minimum qualifications and none of the
disqualification.67
In sum, while petitioner was able to demonstrate his standing to
appeal the CSC Resolutions to the courts, he failed to prove his
eligibility to the position he was appointed to.
WHEREFORE, the Petition is GRANTED insofar as it seeks legal
standing for petitioner, but DENIED insofar as it prays for the reversal
of the CSC Resolutions disapproving his appointment as department
manager III of the Labor and Employment Center, Subic Bay
Metropolitan Authority. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.
Corona, J., on leave.
Footnotes
1 Rollo, pp. 18-39.
2 Id., pp. 7-13. Third Division. Penned by Justice Marina L.
Buzon, with the concurrence of Justices Buenaventura J.
Guerrero (Division chair) and Alicia L. Santos (member).
3 Id., pp. 14-15.
4 Assailed Decision, p. 6; rollo, p. 12.
5 Id., pp. 1-5 & 7-11.
6 Id., pp. 5-6 & 11-12 (citing People v. Pinca, 376 Phil. 377,
November 17, 1999).
7 371 Phil. 17, August 9, 1999.
8 Assailed Decision, p. 5; rollo, p. 11.
9 Assailed Resolution, p. 2; rollo, p. 15.
10 This case was deemed submitted for decision on July 23,
2003, upon this Court's receipt of the Office of the Solicitor
General's Memorandum, signed by Assistant Solicitor General
Renan E. Ramos and Associate Solicitor Tomas D. Tagra Jr.
Respondent CSC's Memorandum, signed by Director Engelbert
Anthony D. Unite and Atty. Bonifacio O. Tarenio Jr., was filed
on June 30, 2003. Petitioner's Memorandum, signed by Attys.
A.B.F. Gaviola Jr. and Marie Josephine C. Suarez, was filed on
July 3, 2003.
11 Petitioner's Memorandum, pp. 8-9; rollo, pp. 185-186.
Original in upper case.
12 Petitioner's Memorandum, p. 9; rollo, p. 186.
13 §27, Title I, Book V, EO 292, "The Administrative Code of
1987"; Chua v. Civil Service Commission, February 7, 1992, 206
SCRA 65; Achacoso v. Macaraig , 195 SCRA 235, 239, March
31, 1991. In contrast, a temporary appointment is one made
to fill a vacancy in the absence of appropriate eligibles (ibid.).
14 Ferrer v. Hechanova, 125 Phil. 524, 528, January 25, 1967.
15 Umoso v. Civil Service Commission, 234 SCRA 617, 623, July
29, 1994; Español v. Civil Service Commission, 206 SCRA 715,
721, March 3, 1992.
16 Tomali v. Civil Service Commission, 238 SCRA 572, 576,
December 1, 1994.
17 Tomali v. Civil Service Commission, Id., p. 575; Mitra v.
Subido, 128 Phil. 128, 143, September 15, 1967. See
also Cortez v. Civil Service Commission, 195 SCRA 216; 222,
March 13, 1991.
18 PD 807, "The Civil Service Law," promulgated October 6,
1975. Title I, Book V, EO 292, also provides:
132
"Section 12 Powers and Functions. — The Commission
shall have the following powers and functions:
"x x x xxx xxx
"(2) Prescribe, amend and enforce rules and
regulations for carrying into effect the provisions of
the Civil Service Law and other pertinent laws"
19 Aquino v. Civil Service Commission, 208 SCRA 240, 247, April
22, 1992; Mitra v. Subido, supra.
20 Guieb v. Civil Service Commission, 229 SCRA 779, February
9, 1994; Lapinid v. Civil Service Commission, supra, p.
388; Central Bank of the Philippines v. Civil Service
Commission, 171 SCRA 744, 752, April 10, 1989; Luego v. Civil
Service Commission, supra, p. 333.
21 Sevilla v. Parina, 128 Phil. 639, 643, October 30, 1967;
Manalang v. Quitoriano, 94 Phil. 903, 911, April 30, 1954.
22 227 Phil. 303, August 5, 1986.
23 Id., p. 307. See also Rimonte v. Civil Service Commission, 314
Phil. 421, 430, May 29, 1995.
24 Lapinid v. Civil Service Commission, 274 Phil. 381, 387, May
14, 1991, per Cruz J. See also Jimenez v. Francisco, 100 Phil.
1025, 1032, February 28, 1957; Branganza v. Commission on
Elections, 127 Phil. 442, 447, August 15, 1967.
25 Lapinid v. Civil Service Commission, supra; Amponin v.
Commission on Elections, 128 Phil. 412, 415, September 29,
1967.
26 Sevilla v. Parina, supra; Manalang v. Quitoriano, supra. See
also Torio v. Civil Service Commission, 209 SCRA 677, 691,
June 9, 1992; Medalla v. Sto. Tomas, 208 SCRA 351, 357, May
5, 1992.
27 171 SCRA 744, 756, April 10, 1989.
28 Id., p. 757, per Gancayco, J.
29 Ibid.
30 See Civil Service Commission v. Dacoycoy, 366 Phil. 86, 104,
April 29, 1999.
31 316 Phil. 652, July 17, 1995
32 Id.,pp. 695-696, per Mendoza, J. See also Agan v. Philippine
International Air Terminals Co., Inc., GR No. 155001, January
21, 2004.
33 This Court has recognized that while public office is not
property to which one may acquire a vested right, it is
nevertheless a protected right. Bince Jr. v. Commission on
Elections, 218 SCRA 782, 792, February 9, 1993 (citing Cruz,
I.A., Constitutional Law [1991], 101; and Bernas, J., The
Constitution of the Republic of the Philippines [1987], Vol. 1,
40).
According to existing jurisprudence, protection begins upon
the favorable action of the CSC. Thus, no title to the office may
be permanently vested in favor of the appointee without the
favorable approval of the CSC. Until it has become a
completed act through the CSC's approval, an appointment
can still be recalled or withdrawn by the appointing authority
(Grospe v. Secretary of Public Works & Communications, 105
Phil. 129, 133, January 31, 1959). It would likewise be
precipitate to invoke the rule on security of tenure or to claim
a vested right over the position (Tomali v. Civil Service
Commission, supra, p. 576. See also Corpuz v. Court of
Appeals, 348 Phil. 801, 812, January 26, 1998).
34 §2, Rule 3, Rules of Court; Agan v. Philippine International
Air Terminals Co., Inc., GR No. 155001, January 21, 2004;
Kilosbayan v. Morato, 316 Phil. 652, 697, July 17, 1995;
Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125, 131,
January 31, 1951.
35 Mathay v. Court of Appeals, 378 Phil. 466, 482, December
15, 1999; Ralla v. Ralla, 199 SCRA 495, 499, July 23, 1991;
Guinobatan Historical and Cultural Association v. CFI, 182
SCRA 256, 262, February 15, 1990.
36 De Leon v. Court of Appeals, 343 Phil. 254, 265, August 15,
1997 (citing Manuel V. Moran, 1 Commentaries on the Rules
of Court 154 [1979]).
37 Mathay v. Court of Appeals, supra; Ralla v. Ralla, supra.
133
38 Issued August 31, 1999. This Resolution governs disciplinary
and non-disciplinary proceedings in administrative cases.
39 Pertinent portions of the Resolution reads:
"Section 6. Jurisdiction of Civil Service Regional Offices.
-The Civil Service Commission Regional Offices shall
have jurisdiction over the following cases:
"x x x
"B. Non-Disciplinary
"1. Disapproval of appointments brought before it on
appeal;
"x x x"
"Section 5. Jurisdiction of the Civil Service Commission
Proper. -The Civil Service Commission Proper shall
have jurisdiction over the following cases:
"B. Non-Disciplinary
"1. Decisions of Civil Service Commission Regional
Offices brought before it;
x x x"
"Section 71. Complaint or Appeal to the Commission. -
Other personnel actions, such as, but not limited to, x x
x action on appointments (disapproval, invalidation,
recall, and revocation) x x x, may be brought to the
Commission, by way of an appeal."
"Section 72. When and Where to File. -A decision or
ruling of a department or agency may be appealed
within fifteen (15) days from receipt thereof by the
party adversely affected to the Civil Service Regional
Office and finally, to the Commission Proper within the
same period. x x x"
40 Supra.
41 Then Item I (3) of Memorandum Circular 38, s. 1993. Id., pp.
26-27.
42 Id., pp. 26-28.
43 Ibid. §1, Rule 65 of the Rules of Court, states that a petition
for certiorari may be availed of when a tribunal, a board or an
officer has acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of
jurisdiction; and there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law.
44 §4, paragraph (3), Article VIII of the Constitution, states: "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."
45 Petitioner's Memorandum, p. 14; rollo, p. 191.
46 The Memorandum Circular, addressed to "All Heads of
Departments, Bureaus and Agencies of the National and Local
Government including Government-Owned and Controlled
Corporations and State Colleges and Universities," was issued
pursuant to CSC Resolution 94-2925, dated May 31, 1994.
47 §3, Article IX-B.
48 Ibid.
49 §2, paragraph 2, Article IX-B. Recognized in §5, PD 807 and
§7, Title I, Book V, EO 292.
50 Whereas Clause, CSC Resolution 94-2925, dated May 31,
1994.
51 §8, Title I, Book V, EO 292; §7, PD 807. See also CSC
Resolution 94-2925.
52 Memorandum Circular 37, s. 1998, dated October 20, 1998;
Memorandum Circular 1, s. 1997, dated January 24, 1997.
53 Article 4 of the Civil Code states: "Laws shall have no
retroactive effect, unless the contrary is provided."
54 An ex post facto law is one (1) which criminalizes an action
that was done before the passing of the law and that was
innocent when done, and punishes such action; (2) which
aggravates a crime or makes it greater than when it was
committed; (3) which changes the punishment and inflicts a
greater punishment than that imposed by the law annexed to
the crime when it was committed; or (4) which alters the legal
rules of evidence and receives less or different testimony than
that which the law required at the time of the commission of
134
the offense in order to convict the defendant. Nuñez v.
Sandiganbayan, 111 SCRA 433, 447-448, January 30, 1982. See
also People v. Sandiganbayan, 211 SCRA 241, 249, July 3,
1992.
55 A bill of attainder is a legislative act that inflicts punishment
on individuals without judicial trial. Misolas v. Panga, 181
SCRA 648, 659, January 30, 1990.
56 Reemployment is defined as "the reappointment of a person
who has been previously appointed to a position in the career
or non-career service and was separated therefrom as a result
of reduction in force, reorganization, retirement, voluntary
resignation, non-disciplinary actions such as dropping from
the rolls and other modes of separation. Reemployment
presupposes a gap in the service." Memorandum Circular 15,
s. 1999, dated August 27, 1999, amending Memorandum
Circular 40, s. 1998.
57 General v. Roco, 350 SCRA 528, 533, January 29, 2001;
Cuevas v. Bacal, 347 SCRA 338, 351, December 6, 2000.
58 69 Phil. 635, 624-644, February 27, 1940. The cardinal
primary requirements that must be respected in
administrative proceedings are as follows: (1) there must be a
right to a hearing, including the right to present one's case and
submit evidence in support thereof; (2) the tribunal must
consider the evidence presented; (3) the decision must have
something to support itself; (4) the evidence must be
substantial; (5) the decision must be rendered on the evidence
presented at the hearing or at least contained in the record
and disclosed to the parties affected; (6) the tribunal must act
on its own consideration of the law and the facts of the
controversy, and not simply accept the views of a subordinate
in arriving at a decision; and (7) the tribunal should render its
decision in such a manner that one can know the various
issues involved and the reasons for the decision rendered.
59 Petitioner's Memorandum, p. 15; rollo, p. 192.
60 Commissioner of Internal Revenue v. Court of Appeals, 329
Phil. 987, 1018, August 29, 1996.
61 Villarosa v. Commission on Elections, 377 Phil. 497, 506,

November 29, 1999.

62 See Vigan Electric Light Co., Inc. v. Public Service

Commission, 119 Phil. 304, 313, January 30, 1964.

63 Commissioner of Internal Revenue v. Court of Appeals;

supra, p. 1019.
64 Corona v. United Harbor Pilots Association of the

Philippines, 347 Phil. 333, 342, December 12, 1997; Philippine

Consumers Foundation, Inc. v. Secretary of Education, Culture
and Sports, 153 SCRA 622, 628, August 31, 1987. Taxicab
Operators of Metro Manila, Inc. v. Board of Transportation,
202 Phil. 925, 934, September 30, 1982; Central Bank of the
Philippines v. Cloribel, 150-A Phil. 86, 101, April 11, 1972.
65 Tañada v. Tuvera, 230 Phil. 528, 535, December 29, 1986.

See also Commissioner of Internal Revenue v. Court of

Appeals, supra, p. 1018. At any rate, Memorandum Circular Case List No. 1; Case 10
21, s. 1994, was allegedly published in the Manila Standard on
June 14, 1994. CSC's Memorandum, p. 21; rollo, p. 165. FIRST DIVISION
66 Debulgado v. Civil Service Commission, 237 SCRA 184, 199,

September 26, 1994. G.R. No. 76633 October 18, 1988

67 Ibid.

EASTERN SHIPPING LINES, INC., petitioner,

vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA),
MINISTER OF LABOR AND EMPLOYMENT, HEARING OFFICER ABDUL
BASAR and KATHLEEN D. SACO, respondents.

Jimenea, Dala & Zaragoza Law Office for petitioner.

The Solicitor General for public respondent.

Dizon Law Office for respondent Kathleen D. Saco.

135

CRUZ, J.:
The private respondent in this case was awarded the sum of
P192,000.00 by the Philippine Overseas Employment Administration
(POEA) for the death of her husband. The decision is challenged by
the petitioner on the principal ground that the POEA had no
jurisdiction over the case as the husband was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he
was killed in an accident in Tokyo, Japan, March 15, 1985. His widow
sued for damages under Executive Order No. 797 and Memorandum
Circular No. 2 of the POEA. The petitioner, as owner of the vessel,
argued that the complaint was cognizable not by the POEA but by the
Social Security System and should have been filed against the State
Insurance Fund. The POEA nevertheless assumed jurisdiction and
after considering the position papers of the parties ruled in favor of
the complainant. The award consisted of P180,000.00 as death
benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the
Solicitor General to move for dismissal on the ground of non-
exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the
National Labor Relations Commission, on the theory inter alia that the
agency should be given an opportunity to correct the errors, if any, of
its subordinates. This case comes under one of the exceptions,
however, as the questions the petitioner is raising are essentially
questions of law. 1 Moreover, the private respondent himself has not
objected to the petitioner's direct resort to this Court, observing that
the usual procedure would delay the disposition of the case to her
prejudice.
136
The Philippine Overseas Employment Administration was created
under Executive Order No. 797, promulgated on May 1, 1982, to
promote and monitor the overseas employment of Filipinos and to
protect their rights. It replaced the National Seamen Board created
earlier under Article 20 of the Labor Code in 1974. Under Section 4(a)
of the said executive order, the POEA is vested with "original and
exclusive jurisdiction over all cases, including money claims, involving
employee-employer relations arising out of or by virtue of any law or
contract involving Filipino contract workers, including seamen." These
cases, according to the 1985 Rules and Regulations on Overseas
Employment issued by the POEA, include "claims for death, disability
and other benefits" arising out of such employment. 2
The petitioner does not contend that Saco was not its employee or
that the claim of his widow is not compensable. What it does urge is
that he was not an overseas worker but a 'domestic employee and
consequently his widow's claim should have been filed with Social
Security System, subject to appeal to the Employees Compensation
Commission.
We see no reason to disturb the factual finding of the POEA that
Vitaliano Saco was an overseas employee of the petitioner at the time
he met with the fatal accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment,
overseas employment is defined as "employment of a worker outside
the Philippines, including employment on board vessels plying
international waters, covered by a valid contract. 3 A contract worker
is described as "any person working or who has worked overseas
under a valid employment contract and shall include seamen" 4 or
"any person working overseas or who has been employed by another
which may be a local employer, foreign employer, principal or partner
under a valid employment contract and shall include
seamen." 5 These definitions clearly apply to Vitaliano Saco for it is
not disputed that he died while under a contract of employment with
the petitioner and alongside the petitioner's vessel, the M/V Eastern
Polaris, while berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two acts
which constitute implied or tacit recognition of the nature of Saco's
employment at the time of his death in 1985. The first is its
submission of its shipping articles to the POEA for processing,
formalization and approval in the exercise of its regulatory power
over overseas employment under Executive Order NO. 797. 7 The
second is its payment 8 of the contributions mandated by law and
regulations to the Welfare Fund for Overseas Workers, which was
created by P.D. No. 1694 "for the purpose of providing social and
welfare services to Filipino overseas workers."
Significantly, the office administering this fund, in the receipt it
prepared for the private respondent's signature, described the
subject of the burial benefits as "overseas contract worker Vitaliano
Saco." 9 While this receipt is certainly not controlling, it does indicate,
in the light of the petitioner's own previous acts, that the petitioner
and the Fund to which it had made contributions considered Saco to
be an overseas employee.
The petitioner argues that the deceased employee should be likened
to the employees of the Philippine Air Lines who, although working
abroad in its international flights, are not considered overseas
workers. If this be so, the petitioner should not have found it
necessary to submit its shipping articles to the POEA for processing,
formalization and approval or to contribute to the Welfare Fund
which is available only to overseas workers. Moreover, the analogy is
hardly appropriate as the employees of the PAL cannot under the
definitions given be considered seamen nor are their appointments
coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for
burial expenses was made by the POEA pursuant to its Memorandum
137
Circular No. 2, which became effective on February 1, 1984. This
circular prescribed a standard contract to be adopted by both foreign
and domestic shipping companies in the hiring of Filipino seamen for
overseas employment. A similar contract had earlier been required by
the National Seamen Board and had been sustained in a number of
cases by this Court. 10 The petitioner claims that it had never entered
into such a contract with the deceased Saco, but that is hardly a
serious argument. In the first place, it should have done so as
required by the circular, which specifically declared that "all parties to
the employment of any Filipino seamen on board any ocean-going
vessel are advised to adopt and use this employment contract
effective 01 February 1984 and to desist from using any other format
of employment contract effective that date." In the second place,
even if it had not done so, the provisions of the said circular are
nevertheless deemed written into the contract with Saco as a
postulate of the police power of the State. 11
But the petitioner questions the validity of Memorandum Circular No.
2 itself as violative of the principle of non-delegation of legislative
power. It contends that no authority had been given the POEA to
promulgate the said regulation; and even with such authorization, the
regulation represents an exercise of legislative discretion which,
under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section
4(a) of Executive Order No. 797, reading as follows:
... The governing Board of the Administration (POEA),
as hereunder provided shall promulgate the necessary
rules and regulations to govern the exercise of the
adjudicatory functions of the Administration (POEA).
Similar authorization had been granted the National Seamen Board,
which, as earlier observed, had itself prescribed a standard shipping
contract substantially the same as the format adopted by the POEA.
The second challenge is more serious as it is true that legislative
discretion as to the substantive contents of the law cannot be
delegated. What can be delegated is the discretion to
determine how the law may be enforced, not what the law shall be.
The ascertainment of the latter subject is a prerogative of the
legislature. This prerogative cannot be abdicated or surrendered by
the legislature to the delegate. Thus, in Ynot v. Intermediate Apellate
Court 12 which annulled Executive Order No. 626, this Court held:
We also mark, on top of all this, the questionable
manner of the disposition of the confiscated property
as prescribed in the questioned executive order. It is
there authorized that the seized property shall be
distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of
carabaos.' (Italics supplied.) The phrase "may see fit" is
an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities
for partiality and abuse, and even corruption. One
searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations
that the officers must observe when they make their
distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate
beneficiaries of their generosity and by what criteria
shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose
the grantee as they see fit, and in their own exclusive
discretion. Definitely, there is here a 'roving
commission a wide and sweeping authority that is not
canalized within banks that keep it from overflowing,'
in short a clearly profligate and therefore invalid
delegation of legislative powers.
138
There are two accepted tests to determine whether or not there is a
valid delegation of legislative power, viz, the completeness test and
the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature
such that when it reaches the delegate the only thing he will have to
do is enforce it. 13 Under the sufficient standard test, there must be
adequate guidelines or stations in the law to map out the boundaries
of the delegate's authority and prevent the delegation from running
riot. 14
Both tests are intended to prevent a total transference of legislative
authority to the delegate, who is not allowed to step into the shoes of
the legislature and exercise a power essentially legislative.
The principle of non-delegation of powers is applicable to all the
three major powers of the Government but is especially important in
the case of the legislative power because of the many instances when
its delegation is permitted. The occasions are rare when executive or
judicial powers have to be delegated by the authorities to which they
legally certain. In the case of the legislative power, however, such
occasions have become more and more frequent, if not necessary.
This had led to the observation that the delegation of legislative
power has become the rule and its non-delegation the exception.
The reason is the increasing complexity of the task of government
and the growing inability of the legislature to cope directly with the
myriad problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated problems
that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of
the problems attendant upon present-day undertakings, the
legislature may not have the competence to provide the required
direct and efficacious, not to say, specific solutions. These solutions
may, however, be expected from its delegates, who are supposed to
be experts in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers in
general are particularly applicable to administrative bodies. With the
proliferation of specialized activities and their attendant peculiar
problems, the national legislature has found it more and more
necessary to entrust to administrative agencies the authority to issue
rules to carry out the general provisions of the statute. This is called
the "power of subordinate legislation."
With this power, administrative bodies may implement the broad
policies laid down in a statute by "filling in' the details which the
Congress may not have the opportunity or competence to provide.
This is effected by their promulgation of what are known as
supplementary regulations, such as the implementing rules issued by
the Department of Labor on the new Labor Code. These regulations
have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation.
The model contract prescribed thereby has been applied in a
significant number of the cases without challenge by the employer.
The power of the POEA (and before it the National Seamen Board) in
requiring the model contract is not unlimited as there is a sufficient
standard guiding the delegate in the exercise of the said authority.
That standard is discoverable in the executive order itself which, in
creating the Philippine Overseas Employment Administration,
mandated it to protect the rights of overseas Filipino workers to "fair
and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as sufficient
standards "Public interest" in People v. Rosenthal 15 "justice and
equity" in Antamok Gold Fields v. CIR 16 "public convenience and
welfare" in Calalang v. Williams 17 and "simplicity, economy and
efficiency" in Cervantes v. Auditor General, 18 to mention only a few
cases. In the United States, the "sense and experience of men" was
accepted in Mutual Film Corp. v. Industrial Commission, 19 and
"national security" in Hirabayashi v. United States. 20
139
It is not denied that the private respondent has been receiving a
monthly death benefit pension of P514.42 since March 1985 and that
she was also paid a P1,000.00 funeral benefit by the Social Security
System. In addition, as already observed, she also received a
P5,000.00 burial gratuity from the Welfare Fund for Overseas
Workers. These payments will not preclude allowance of the private
respondent's claim against the petitioner because it is specifically
reserved in the standard contract of employment for Filipino seamen
under Memorandum Circular No. 2, Series of 1984, that—
Section C. Compensation and Benefits.—
1. In case of death of the seamen during the term of
his Contract, the employer shall pay his beneficiaries
the amount of:
a. P220,000.00 for master and chief
engineers
b. P180,000.00 for other officers,
including radio operators and master
electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits
mentioned above shall be separate and distinct from,
and will be in addition to whatever benefits which the
seaman is entitled to under Philippine laws. ...
3. ...
c. If the remains of the seaman is buried
in the Philippines, the owners shall pay
the beneficiaries of the seaman an
 amount not exceeding P18,000.00 for
burial expenses.
The underscored portion is merely a reiteration of Memorandum
Circular No. 22, issued by the National Seamen Board on July 12,1976,
providing an follows:
Income Benefits under this Rule Shall be Considered
Additional Benefits.—
All compensation benefits under Title II, Book Four of
the Labor Code of the Philippines (Employees
Compensation and State Insurance Fund) shall be
granted, in addition to whatever benefits, gratuities or
allowances that the seaman or his beneficiaries may be
entitled to under the employment contract approved
by the NSB. If applicable, all benefits under the Social
Security Law and the Philippine Medicare Law shall be
enjoyed by the seaman or his beneficiaries in
accordance with such laws.
The above provisions are manifestations of the concern of the State
for the working class, consistently with the social justice policy and
the specific provisions in the Constitution for the protection of the
working class and the promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case.
Its argument that it has been denied due process because the same
POEA that issued Memorandum Circular No. 2 has also sustained and
applied it is an uninformed criticism of administrative law itself.
Administrative agencies are vested with two basic powers, the quasi-
legislative and the quasi-judicial. The first enables them to
promulgate implementing rules and regulations, and the second
enables them to interpret and apply such regulations. Examples
abound: the Bureau of Internal Revenue adjudicates on its own
140
revenue regulations, the Central Bank on its own circulars, the
Securities and Exchange Commission on its own rules, as so too do
the Philippine Patent Office and the Videogram Regulatory Board and
the Civil Aeronautics Administration and the Department of Natural
Resources and so on ad infinitum on their respective administrative
regulations. Such an arrangement has been accepted as a fact of life
of modern governments and cannot be considered violative of due
process as long as the cardinal rights laid down by Justice Laurel in
the landmark case of Ang Tibay v. Court of Industrial Relations 21 are
observed.
Whatever doubts may still remain regarding the rights of the parties
in this case are resolved in favor of the private respondent, in line
with the express mandate of the Labor Code and the principle that
those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on the
scales of social justice, the heavier influence of the latter must be
counter-balanced by the sympathy and compassion the law must
accord the underprivileged worker. This is only fair if he is to be given
the opportunity and the right to assert and defend his cause not as a
subordinate but as a peer of management, with which he can
negotiate on even plane. Labor is not a mere employee of capital but
its active and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the
petitioner. The temporary restraining order dated December 10, 1986
is hereby LIFTED. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
Footnotes
1 Bagatsing v. Ramirez, 74 SCRA 306; Del Mar v. Phil.
Veterans Administration, 51 SCRA 340; Aguilar v.
Valencia, 40 SCRA 210; Begosa v. PVA 32 SCRA 446;
Tapales v. President and Board of Regents, 7 SCRA 553;
Pascual v. Nueva Ecija Provincial Board, 106 Phil. 466;
Mondano v. Silvosa 97 Phil. 143.
2 Sec. I (d), Rule I, Book VI (1985 Rules).
3 Sec. 1 x Rule 11, Book I (1985 Rules).
4 Sec. l(g), Rule II, Book I (1985 Rules).
5 Sec. 1 (g), Rule 11, Book I (1984 Rules).
6 Rollo, p. 171 (POEA Decision, p. 8).
7 Ibid., pp. 169-170 (POEA Decision, pp. 6-7).
8 Rollo, pp. 213-217.
9 Annex "A" of Private Respondent's Comment (Rollo,
p. 230).
10 Bagong Filipinas Overseas Corp. v. NLRC, 135 SCRA
278; Virgen v. NLRC, 125 SCRA 577; orse Management
v. NSB, et al., 117 SCRA 486; Virgen v. NLRC, 115 SCRA
347.
11 Stone v. Mississippi, 101 US 814,
12 148 SCRA 669.
13 People v. Vera 65 Phil. 56.
14 Cervantes v. Auditor General, 91 Phil. 359; People v.
Rosen that 68 Phil. 328.
15 Supra.
16 70 Phil. 340.
17 70 Phil. 726.
18. Supra.
19 236 U.S. 247.
20 320 U.S. 99.
21 69 Phil. 635.

141