Case List No.

1; Case 1 COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL

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
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. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA 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
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
AND
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,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
1
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY
AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT
AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.1 Superior strength – the use of force – cannot
make wrongs into rights. In this regard, the courts should be vigilant in
safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice
should weigh heavily against government and in favor of the poor,
the oppressed, the marginalized, the dispossessed and the weak."
Laws and actions that restrict fundamental rights come to the courts "with
a heavy presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and
2
General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent
officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very
freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a
state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: "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;
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;
3
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.
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.
4
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 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
5
ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the
fermenting peace and order situation. She directed both the AFP and the
PNP to account for all their men and ensure that the chain of command
remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated
that political rallies, which to the 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 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
6
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 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."
7
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
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
8
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 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
9
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.
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;
10
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the 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 Corporation,63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, 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, 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
11
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 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"
12
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 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 perish.86
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...
13
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
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
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…
14
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 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’
15
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 structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his
power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a
certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.
a. "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:
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:
16
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.
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:
17
"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.
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:
18
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 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, among others, "execute its
19
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 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
20
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.
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:
21
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 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
22
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-being
beyond that which is accepted as normal. Implicit in this definitions are
the elements of intensity, variety, and perception.127 Emergencies, as
perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under
three (3) principal heads: a) economic,128 b) natural
disaster, and c) national security.
129 130
"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.
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, 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.

"x x x c. "AS APPLIED CHALLENGE"

23
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
effects in a particular case.137 PP 1017 is merely an invocation of the
24
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 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
25
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 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
26
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:
(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
27
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 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
28
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 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:
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:
29
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.
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
30
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 the Tribune offices and whimsical seizure of its articles for publication and
substantive civil rights are ends in themselves. How to give the other materials, are declared UNCONSTITUTIONAL.
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal No costs.
balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, SO ORDERED.
yet they should not be arbitrary as to unduly restrain our people’s liberty.
ANGELINA SANDOVAL-GUTIERREZ
Perhaps, the vital lesson that we must learn from the theorists who Associate Justice
studied the various competing political philosophies is that, it is possible
to grant government the authority to cope with crises without
Footnotes
surrendering the two vital principles of constitutionalism: the 1 Law and Disorder, The Franklin Memorial Lectures, Justice Tom
maintenance of legal limits to arbitrary power, and political
C. Clark – Lecturer, Volume XIX, 1971, p. 29.
responsibility of the government to the governed.158 2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity,

February 15, 2006.

WHEREFORE, the Petitions are partly granted. The Court rules that PP 3 Articulated in the writings of the Greek philosopher, Heraclitus of
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Ephesus, 540-480 B.C., who propounded universal
Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless impermanence and that all things, notably opposites are
violence. However, the provisions of PP 1017 commanding the AFP to interrelated.
enforce laws not related to lawless violence, as well as decrees 4 Respondents’ Comment dated March 6, 2006.
promulgated by the President, are declared UNCONSTITUTIONAL. In 5 Ibid.
addition, the provision in PP 1017 declaring national emergency under 6 Ibid.
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such 7 Minutes of the Intelligence Report and Security Group,
declaration does not authorize the President to take over privately-owned Philippine Army, Annex "I" of Respondents’ Consolidated
public utility or business affected with public interest without prior Comment.
legislation. 8 Respondents’ Consolidated Comment.
9 Ibid.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which 10 Ibid.

the AFP and the PNP should implement PP 1017, i.e. whatever is 11 Petition in G.R. No. 171396, p. 5.

"necessary and appropriate actions and measures to suppress and 12 Police action in various parts of Metro Manila and the reactions

prevent acts of lawless violence." Considering that "acts of terrorism" of the huge crowds being dispersed were broadcast as "breaking
have not yet been defined and made punishable by the Legislature, such news" by the major television stations of this country.
portion of G.O. No. 5 is declared UNCONSTITUTIONAL. 13 Petition in G.R. No. 171400, p. 11.

14
Ibid.
The warrantless arrest of Randolf S. David and Ronald Llamas; the 15 The prime duty of the Government is to serve and protect the

dispersal and warrantless arrest of the KMU and NAFLU-KMU members
during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and
violating BP 880; the imposition of standards on media or any form of
prior restraint on the press, as well as the warrantless search of
people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal military or
civil service.

31
16 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.
17 The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches 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
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.
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.
32
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.
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
33
Court held that where serious constitutional questions are
involved, the "transcendental 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). 87 Smith and Cotter, Powers of the President during Crises, 1972,
76 Lansang v. Garcia, supra, pp. 473 and 481. pp. 6-7.
77 Supra. 88 Representative Government, New York, Dutton, 1950, pp. 274,

78 "Five Justices – Antonio, Makasiar, Esguerra, Fernandez, and 277-78.

Aquino – took the position that the proclamation of martial law 89 The Discourses, Bk. 1, Ch. XXXIV.

and the arrest and detention orders accompanying the 90 Smith and Cotter, Powers of the President During Crises, 1972.

proclamation posed a "political question" beyond the jurisdiction p. 8.

of the Court. Justice Antonio, in a separate opinion concurred in 91 Ibid.

by Makasiar, Fernandez, and Aquino, argued that the 92 See The Problem of Constitutional Dictatorship, p. 328.

Constitution had deliberately set up a strong presidency and had 93 Ibid., p. 353.

concentrated powers in times of emergency in the hands of the 94 Ibid., pp. 338-341.

President and had given him broad authority and discretion which 95 Smith and Cotter, Powers of the President During Crises, 1972,

the Court was bound to respect. He made reference to the p. 9.

decision in Lansang v. Garcia but read it as in effect upholding 96 Constitutional Government and Democracy, Ch. XXVI, rev. ed.,

the "political question" position. Fernandez, in a separate opinion, Boston: Ginn & Co., 1949, p. 580.
also argued Lansang, even understood as giving a narrow scope 97 Ibid, pp. 574-584.

of review authority to the Court, affirmed the impossible task of 98 Smith and Cotter, Powers of the President During Crises, 1972,

‘checking’ the action taken by the President. Hence, he p. 10.

advocated a return to Barcelon v. Baker. Similarly, Esguerra 99 Rossiter, Constitutional Dictatorship, Princeton: Princeton
advocated the abandonment of Lansang and a return University Press, 1948, pp. 298-306.
to Barcelon. And, although Justices Castro, Fernando, Muñoz- 100 Smith and Cotter, Powers of the President During
Palma, and, implicitly, Teehankee, lined up on the side of Crises, 1972, p. 11.
justiciability as enunciated in Lansang, x x x Barredo, however, 101 Smith and Cotter, Powers of the President During
wanted to have the best of both worlds and opted for the view Crises, 1972, p. 12.
that "political questions are not per se beyond the Court’s 102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72

jurisdiction ... but that as a matter of policy implicit in the Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J.
Constitution itself the Court should abstain from interfering with Jackson.
the Executive’s Proclamation." (Bernas, The 1987 Constitution of 103 See Concurring Opinion of Justice Mendoza in Estrada v.

the Republic of the Philippines: A Commentary, 1996 Edition, p. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369
794.) SCRA 393.
79 See Separate Opinion of J. Puno in Integrated Bar of the 104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

Philippines v. Zamora, supra. 105 Supra.

80 Supra. 106 See Concurring Opinion of Justice Mendoza in Estrada v.

81 Cruz, Philippine Political Law, 2002 Ed., p. 247. Sandiganbayan, supra.

82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).

1998, 298 SCRA 756. 108 Ibid.

83 Supra, 481-482. 109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States

84 Smith and Cotter, Powers of the President during Crises, 1972, v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees,
p. 6. State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
85 Ibid. 110 Ermita-Malate Hotel and Motel Operators Association v. City

86 The Social Contract (New York: Dutton, 1950), pp. 123-124. Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967).

34
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.
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
35
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," 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. 271-
273.
145 An Act Ensuring the Free Exercise by the People of their Right
Peaceably to Assemble and Petition the Government for Other
Purposes.
146 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-
273.
147 Ibid.
148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125
SCRA 553.
36
150 Section 5. Application requirements - All applications for a
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.
151 Petition in G.R. No. 171400, p. 11.
152 No. L-64161, December 26, 1984, 133 SCRA 816.
153 Dissenting Opinion, J. Cruz, National Press Club v.
Commission on Elections, G.R. Nos. 102653, 102925 & 102983,
March 5, 1992, 207 SCRA 1.
154 Boyd v. United States, 116 U.S. 616 (1886).
155 Transcript of Stenographic Notes, Oral Arguments, March 7,
2006, p. 470.
156 Ibid., pp. 432-433.
157 Ibid, pp. 507-508.
158 Smith and Cotter, Powers of the President During Crisis, 1972,
p. 146.
SUMMARY OF THE VOTING IN THE PP 1017 DECISION
Fourteen of the 15 SC justices participated in the decision. Senior
Associate Justice Reynato S. Puno was on leave.
Justice Angelina Sandoval Gutierrez’s 78-page ponencia was concurred
in by 10 Justices: Chief Justice Artemio V. Panganiban and Justices
Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio T. Carpio,
Ma. Alicia Austria-Martinez, Conchita Carpio Morales, Romeo J. Callejo,
Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and Cancio C. Garcia.
Both the Chief Justice and Justice Ynares-Santiago wrote separate
concurring opinions. The Chief Justice’s concurring opinion was joined by
Justices Carpio, Carpio Morales, and Callejo, Sr.
Justice Dante O. Tinga’s dissenting opinion was joined by Justices
Renato C. Corona and Presbitero J. Velasco, Jr.
EN BANC
Case List No. 1; Case 2 including the highest officials of the land, must defer.3 Constitutional
doctrines must remain steadfast no matter what may be the tides of time.
EN BANC
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
G.R. No. 192935 December 7, 2010 the people who run it.4

LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
SR., Petitioners,
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.
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."
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.

--- Justice Jose P. Laurel1 Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth
The role of the Constitution cannot be overlooked. It is through the Commission of 2010 (Truth Commission). Pertinent provisions of said
Constitution that the fundamental powers of government are established, executive order read:
limited and defined, and by which these powers are distributed among
the several departments.2 The Constitution is the basic and paramount EXECUTIVE ORDER NO. 1
law to which all other laws must conform and to which all persons, CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
37
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 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.
38
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 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;
39
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.
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
By the President:
(SGD.) PAQUITO N. OCHOA,
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
III 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
JR. 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
40
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
41
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
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;
42
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;
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 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-
43
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
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
44
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
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
45
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 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.
46
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.
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 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
47
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 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."
48
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 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.
49
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 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
50
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 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, 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.
51
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 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
52
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."
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:
53
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
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
54
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 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/nation/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,
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.
55
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.
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).
56
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, 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 US
357, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vo
l=118&invol=35 <accessed on December 4, 2010>.
93 Macalintal v. COMELEC, G.R. No. 157013, July 10, 2003, 405
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/xq/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. Case List No. 1; Case 3
16 (b), pp. 367-368 .
98 Nixon v. Administrator of General Services, 433 US 425 cited in
EN BANC
Am. Jur. 2d, Vol. 16 (b), p. 371.
99 Hunter v. Flowers, 43 So 2d 435 cited in Am. Jur. 2d, Vol. 16
G.R. No. 196425 July 24, 2012
(b), p. 370.
100 Clements v. Fashing, 457 US 957.

101 See Am. Jur. 2d, Vol. 16 (b), pp. 370-371, as footnote (A state
PROSPERO A. PICHAY, JR., Petitioner,
vs.
legislature may, consistently with the Equal Protection Clause,
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL
address a problem one step at a time, or even select one phase
AFFAIRS INVESTIGATIVE AND ADJUDICATORY DIVISION, HON.
of one field and apply a remedy there, neglecting the others.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary,
[Jeffeson v. Hackney, 406 US 535].
and HON. CESAR V. PURISIMA, in his capacity as Secretary of
102
McDonald v. Board of Election Com’rs of Chicago, 394 US 802
Finance, and as an ex-officio member of the Monetary
cited in Am Jur 2d, Footnote No. 9.
103 Ricketts v. City of Hardford, 74 F. 3d 1397 cited in Am. Jur. 2d,
Board, Respondents.
Vol. 16 (b), p. 303.
104 OSG Consolidated Comment, p. 66, rollo, p.186. DECISION
105 Lagman Memorandum, p. 30; rollo, p. 118.

106 G.R. No. 86926, October 15, 1991; 202 SCRA 680. PERLAS-BERNABE, J.:
107 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

108 Cruz, Philippine Political Law, 2002 ed., pp. 12-13. The Case
109 Id.

110 Republic v. Southside Homeowners Association, G.R. No.

This is a Petition for Certiorari and Prohibition with a prayer for the
156951, September 22, 2006. 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 submit its report
and recommendations to the President. Pertinent portions of E.O. 12
provide:

57
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;
58
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;
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
59
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.
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:
(1)Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
60
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 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.
61
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 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
62
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
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)
63
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
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
An election is the embodiment of the popular will, perhaps the purest
expression of the sovereign power of the people. It involves the choice
1âw phi 1
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
64
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 show
that the lAD-ODES LA had unjustifiably sided against him in the conduct
of the investigation. No such evidence has been presented as to defeat
the presumption of regularity m the performance of the fact-finding
investigator's duties. The assertion, therefore, deserves scant
consideration.
Every law has in its favor the presumption of constitutionality, and to
justify its nullification, there must be a clear and unequivocal breach of
the Constitution, not a doubtful and argumentative one.39 Petitioner has
failed to discharge the burden of proving the illegality of E.O. 13, which IS
indubitably a valid exercise of the President's continuing authority to
reorganize the Office of the President.
WHEREFORE, premises considered, the petition IS hereby DISMISSED.
SO ORDERED. 21
Rollo, p. 86.
22
Section 3, E.O. 13.
ESTELA M. PERLAS-BERNABE 23
Section 4(b), E.O. 12.
Associate justice 24
Section 8, E.O. 12.
25
G.R. No. 96681, December 2, 1991, 204 SCRA 483, 492.
Footnotes
26
G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA
* On official leave. 78, 160.
** On leave.
27
Department of Health v. Camposano, G.R. No. 157684, April 27,
*** On official business. 2005, 457 SCRA 438, 450; Biraogo v. Philippine Truth
**** On leave. Commission, G.R. Nos. 192935 and 193036, December 7, 2010,
1
Rollo, pp. 51-53. 637 SCRA 78, 160.
2
Docketed as OP-DC Case No. 11-D-008.
28
Flores v. Montemayor, G.R. No. 170146, June 8, 2011, 651
3
Rollo, p. 54 SCRA 396, 404.
4
Section 31, Chapter 10, Book III of E.O. No. 292.
29
Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and
5
G.R. Nos. 142801-802, July 10, 2001, 360 SCRA 718, 729. 193036, December 7, 2010, 637 SCRA 78, 166.
6
G.R. No. 142283, February 6, 2003, 397 SCRA 56.
30
Ichong v. Hernandez, 101 Phil. 1155 (1957), cited in Fariñas v.
7
Paragraphs (2) and (3) of Section 31. Executive Secretary, G.R. No. 147387, December 10, 2003, 417
8
G.R. No. 142283, February 6, 2003, 397 SCRA 56. SCRA 503, 525.
9
Section 2, E.O. 12.
31
G.R. No. 147387, December 10, 2003, 417 SCRA 503.
10
Section 1, E.O. 12.
32
Ambas v. Buenaceda, G.R. No. 95244, September 4, 1991, 201
11
Section 22, Chapter 8, Book III, The Administrative Code of SCRA 308, 314, citing Lacanilao v. De Leon, No. L-76532,
1987. January 26, 1987, 147 SCRA 286, 298; Aguirre, Jr. v. De Castro,
12
G.R. No. 133132, January 25, 2000, 323 SCRA 312. G.R. No. 127631, December 17, 1999, 321 SCRA 95, 104.
13
Malaria Employees and Workers Association of the Philippines,
33
See Garcia v. Pajaro, G.R. No. 141149, July 5, 2002, 384 SCRA
Inc. (MEWAP) v. Romulo, G.R. No. 160093, July 31, 2007, 528 122, 135.
SCRA 673, 683.
34
G.R. No. 180917, April 23, 2010, 619 SCRA 313.
14
General Appropriations Act of 2010 (R.A. No. 9970).
35
Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA
15
General Appropriations Act of 2011 (R.A. No. 10147). 29.
16
Section 25 (1), Article VI, 1987 Constitution – The Congress
36
Libres v. NLRC, G.R. No. 12373, May 28, 1999, 307 SCRA 675.
may not increase the appropriations recommended by the
37
Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405
President for the operation of the Government as specified in the SCRA 264, 269; AMA Computer College-East Rizal, et al. v.
budget. x x x. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633.
17
Bagaoisan v. National Tobacco Administration, G.R. No.
38
Casimiro v. Tandog, G.R. No. 146137, June 08,2005,459 SCRA
152845, August 5, 2003, 408 SCRA 337, 348. 624,631.
18
Banda v. Ermita, G.R. No. 166620, April 20, 2010, 618 SCRA
39
Lacson v. Executive Secretary, G .R. No. 128096, January 20,
488, 513. 1999, 301 SCRA 298, 311.
19
Section 25 (5), Article VI, 1987 Constitution – No law shall be
passed authorizing any transfer of appropriations; however, the
President, xxx 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.
20
Section 44, P.D. 1177 (Budget Reform Decree of 1977).
65
Case List No. 1; Case 4 WHEREAS, urban land reform is a concern of the Presidential
Commission [for] the Urban Poor (PCUP) and ancestral domain reform is
EN BANC a concern of the National Commission on Indigenous Peoples (NCIP);

G.R. No. 166052 August 29, 2007
ANAK MINDANAO PARTY-LIST GROUP, as represented by Rep.
Mujiv S. Hataman, and MAMALO DESCENDANTS ORGANIZATION,
INC., as represented by its Chairman Romy Pardi, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE HON. EDUARDO R. ERMITA,
and THE SECRETARY OF AGRARIAN/LAND REFORM, THE HON.
RENE C. VILLA, Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo
Descendants Organization, Inc. (MDOI) assail the constitutionality of
Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the
present Petition for Certiorari and Prohibition with prayer for injunctive
relief.
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.

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on SECTION 2. The PCUP is hereby placed under the supervision and
September 27, 2004, reads: control of the Department of Land Reform. The Chairman of the PCUP
shall be ex-officio Undersecretary of the Department of Land Reform for
EXECUTIVE ORDER NO. 364 Urban Land Reform.

TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO SECTION 3. The NCIP is hereby placed under the supervision and
THE DEPARTMENT OF LAND REFORM control of the Department of Land Reform. The Chairman of the NCIP
shall be ex-officio Undersecretary of the Department of Land Reform for
Ancestral Domain Reform.
WHEREAS, one of the five reform packages of the Arroyo administration
is Social Justice and Basic [N]eeds;
SECTION 4. The PCUP and the NCIP shall have access to the services
provided by the Department’s Finance, Management and Administrative
WHEREAS, one of the five anti-poverty measures for social justice is
Office; Policy, Planning and Legal Affairs Office, Field Operations and
asset reform;
Support Services Office, and all other offices of the Department of Land
Reform.
WHEREAS, asset reforms covers [sic] agrarian reform, urban land
reform, and ancestral domain reform;
66
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.
67
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
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
68
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
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 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.
69
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 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
70
(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 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
71
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
coordination."42 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 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
72
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.
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).
73
16 400 Phil. 904 (2000).
17 G.R. No. 169777, April 20, 2006, 488 SCRA 1.
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 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
74
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 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
75
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 —
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
76
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 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
Government,20 (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
77
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 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;
(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;
78
(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, 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
79
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'
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-
80
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 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 Peace And Harmony, Promote The Preferential Use Of Voluntary
REINSTATEMENT and to the payment of full backwages to be reckoned Modes Of Settling Labor Disputes And Reorgnize The National
from the date they were removed from office.35 Labor Relations Commission, Amending Presidential Decree No.
441, As Amended, Otherwise Known As The Labor Code Of The
SO ORDERED. Philippines, Appropriating Funds Therefor And For Other
Purposes." Took effect on March 21, 1989.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
19
Id. SEC. 35 provides —
Panganiban, Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago and Equity of the Incumbent. — Incumbent career officials and
De Leon, Jr., JJ., concur. 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
Footnotes with adjudicatory powers and functions, and to upgrade
1
Entitled "An Act Providing For the Reform And Reorganization Of their qualifications, ranks, and salaries or emoluments, all
The Philippine National Police And For Other Purposes, positions of the Commissioners, Executive Labor Arbiters
Amending Certain Provisions Of Republic Act Numbered Sixty- and Labor Arbiters of the present National Labor
Nine Hundred And Seventy-Five Entitled, "An Act Establishing Relations Commission are hereby declared vacant.
The Philippine National Police Under A Re-Organized However, subject officials shall continue to temporarily
Department Of The Interior And Local Government, And For discharge their duties and functions until their successors
Other Purposes." Took effect on March 6, 1998. shall have been duly appointed and qualified. (emphasis
2
Rollo, 81. supplied).
3
Ibid. 20
RA 6975, sec. 13.
4
Ibid., 83. 21
RA 8551, sec. 4.
5
Constitution, art. 9 (B), sec. 2 (1). 22
Id.
6
Id., art. 9 (B), sec. 2 (3). 23
Id., SEC. 10 Section 20 of Republic Act No. 6975 is hereby
7
De los Santos vs. Mallare, 87 Phil 289 (1950). amended to read as follows:
8
Rollo, 84-94. Sec. 20. Organizational Structure. — The Commission
9
Eugenio v. Civil Service Commission, 243 SCRA 196 (1995). shall consist of the following units:
10
Manalang v. Quitoriano, 94 Phil 903 (1954). (a) Commission Proper. — This is composed of
11
Ginzon v. Municipality of Murcia, 158 SCRA 1 (1988); Gregorio the offices of the Chairman and four (4)
v. Court of Appeals, 129 SCRA 184 (1984). Commissioners.
12
Abrot v. Court of Appeals, 116 SCRA 468 (1982). (b) Staff Services. — The staff services of the
13
Baldoz v. Office of the President, 78 SCRA 354 (1977). Commission shall be as follows:
14
Busacay v. Buenaventura and Murao, 93 Phil 786 (1953). (1) The Planning and Research Service,
15
200 SCRA 685 (1991). See Gacho v. Osmena, Jr., 103 Phil 837 which shall provide technical services to
(1958); Brillo v. Enage, 94 Phil 732 (1954). the Commission in areas of overall policy
16
186 SCRA 108 (1990). formulation, strategic and operational
17
194 SCRA 672 (1991). planning, management systems or
18
Entitled "An Act To Extend Protection To Labor, Strengthen The procedures, evaluation and monitoring of
Constitutional Rights Of Workers To Self-Organization, Collective the Commission's programs, projects and
Bargaining And Peaceful Concerted Activities, Foster Industrial internal operations; and shall conduct
81
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 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
82
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. 1âwphi 1.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
chief, the mayor, and the People's Law Enforcement
Board (PLEB) created hereunder.
(amendments are underscored)
24
RA 6975, sec. 13; RA 8551, sec. 4.
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 Case List No. 1; Case 6
Commission, 211 SCRA 88 (1992); Domingo v. Development
Bank of the Philippines, 207 SCRA 766 (1992); Pari-an v. Civil EN BANC
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
G.R. No. 115863 March 31, 1995
on the organizational structure and rank classification of
the PNP, the Commission shall conduct a management
audit, and prepare and submit to Congress a proposed AIDA D. EUGENIO, petitioner,
reorganization plan of the PNP not later than December vs.
31, 1998, subject to the limitations provided under this Act CIVIL SERVICE COMMISSION, HON. TEOFISTO T. GUINGONA, JR. &
and based on the following criteria: a) increased police HON. SALVADOR ENRIQUEZ, JR., respondents.
visibility through dispersal of personnel from the
headquarters to the field offices and by the appointment
and assignment of non-uniformed personnel to positions
which are purely administrative, technical, clerical or PUNO, J.:
menial in nature and other positions which are not
actually and directly related to police operation; and b) The power of the Civil Service Commission to abolish the Career
efficient and optimized delivery of police services to the Executive Service Board is challenged in this petition for certiorari and
communities. prohibition.
The PNP reorganization program shall be approved by
Congress through a joint resolution. First the facts. Petitioner is the Deputy Director of the Philippine Nuclear
32
Floreza v. Ongpin, 182 SCRA 692 (1990); Tanala v. Legaspi, 13 Research Institute. She applied for a Career Executive Service (CES)
SCRA 566 (1965). Eligibility and a CESO rank on August 2, 1993, she was given a CES
33
Rollo, 8-12. eligibility. On September 15, 1993, she was recommended to the
34
Osmena v. Commission on Elections, 288 SCRA 447 (1998). President for a CESO rank by the Career Executive Service Board. 1
35
Mendoza v. Quisumbing, 186 SCRA 108 (1990).
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

83
measures to promote morale, efficiency, 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.
84
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.
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
85
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 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
86
Administrative Code of 1987 as the source of its power to abolish the
CESB. Section 17 provides:
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.
(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
87
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 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
88
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
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
89
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 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)
90
"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 -
"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
91
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 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
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
92
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.
"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.
93
"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 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
94
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 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 their respective offices from savings in other items of their
1
Rollo, pp. 49-50. respective appropriations.
2
Rollo, pp. 50-51. (6) Discretionary funds appropriated for particular officials
3
Rollo, p. 14. shall be disbursed only for public purposes to be
4
Rollo, pp. 50-51. supported by appropriate vouchers and subject to such
5
Rollo, pp. 140-141. guidelines as may be prescribed by law.
6
Section 7, Rule 3, 1997 Revised Rules of Civil Procedure (7) If, by the end of any fiscal year, the Congress shall
provides: have failed to pass the general appropriations bill for the
"Parties in interest without whom no final determination ensuing fiscal year, the general appropriations law for the
can be had of an action shall be joined either as plaintiffs preceding fiscal year shall be deemed reenacted and
or defendants." shall remain in force and effect until the general
7
G.R. No. 142801-802, 10 July 2001, 360 SCRA 718. appropriations bill is passed by the Congress.
8
At pp. 726-730. 13
G.R. No. 142283, 06 February 2003.
9
Rollo, pp. 55-57. 14
Canonizado vs. Aguirre, G. R. No. 133132, 25 January 2000,
10
SEC. 17. The President shall have control of all the executive 323 SCRA 312.
departments, bureaus, and offices. He shall ensure that the laws
1âwphi1
15
Dario vs. Mison, G. R. Nos. 81954, 81967, 82023, 83737,
be faithfully executed. 85310, 85335 & 86241, 08 August 1989, 176 SCRA 84.
11
Buklod ng Kawaning EIIB vs. Zamora, Ibid. 16
Ortigas and Company Limited Partnership vs. Velasco, G. R.
12
Sec. 25. (1) The Congress may not increase the appropriations Nos. 109645 & 112564, 04 March 1996, 254 SCRA 234.
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 prescribed by law.
(2) No provision or enactment shall be embraced in the
general appropriations bill unless it relates specifically to
some particular appropriation therein. Any such provision
or enactment shall be limited in its operation to the
appropriation to which it relates.
(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

95
Case List No. 1; Case 8
SECOND DIVISION
G.R. No. 130584 June 27, 2006
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 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.
On June 17, 1994, P.D. No. 1752 was amended by Republic Act (R.A.)
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 Security
System and Government Service Insurance System, as well as their
employers. However, membership is voluntary for employees earning
less than P4,000.00 a month.
96
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.
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.
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.
97
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.
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
98
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
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
99
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,
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
100
Footnotes
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.
Case List No. 1; Case 9 The challenged Resolution denied petitioner's Motion for
Reconsideration.
EN BANC
The Facts
G.R. No. 152574 November 17, 2004
The CA narrates the factual antecedents in this wise:
FRANCISCO ABELLA JR., petitioner,
vs. "Petitioner Francisco A. Abella, Jr., a lawyer, retired from the
CIVIL SERVICE COMMISSION, respondent. 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
DECISION
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
PANGANIBAN, J.: 1994, the pertinent provisions of which read:

Both the appointing authority and the appointee are the real parties in '1. Positions Covered by the Career Executive Service
interest, and both have legal standing, in a suit assailing a Civil Service
Commission (CSC) order disapproving an appointment. Despite having xxx xxx xxx
legal interest and standing, herein petitioner unsuccessfully challenges
the constitutionality of the CSC circular that classifies certain positions in
(b) In addition to the above identified positions and other positions
the career service of the government. In sum, petitioner was appointed to
of the same category which had been previously classified and
a Career Executive Service (CES) position, but did not have the
included in the CES, all other third level positions of equivalent
corresponding eligibility for it; hence, the CSC correctly disapproved his
appointment. category in all branches and instrumentalities of the national
government, including government owned and controlled
corporations with original charters are embraced within the
The Case Career Executive Service provided that they meet the following
criteria:
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 '1. the position is a career position;
Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 58987. The
Assailed Decision disposed as follows:
'2. the position is above division chief level
"WHEREFORE, the petition for review is DENIED for lack of
'3. the duties and responsibilities of the position require
merit."4
the performance of executive or managerial functions.

101
 '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 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
102
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:
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
103
"(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:
"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 Commission22 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.
104
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 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 reconsideration of, or
appeals from, unfavorable decisions involving appointments. Indeed,
there is no legislative intent to bar appointees from challenging the CSC's
disapproval.
105
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."
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
106
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
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
107
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
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 Unite and Atty. Bonifacio O. Tarenio Jr., was filed on June 30,
disapproving an appointment, merely examines the conformity of the 2003. Petitioner's Memorandum, signed by Attys. A.B.F. Gaviola
appointment with the law and the appointee's possession of all the Jr. and Marie Josephine C. Suarez, was filed on July 3, 2003.
minimum qualifications and none of the disqualification.67 11
Petitioner's Memorandum, pp. 8-9; rollo, pp. 185-186. Original in
upper case.
In sum, while petitioner was able to demonstrate his standing to appeal 12
Petitioner's Memorandum, p. 9; rollo, p. 186.
the CSC Resolutions to the courts, he failed to prove his eligibility to the 13
§27, Title I, Book V, EO 292, "The Administrative Code of 1987";
position he was appointed to. Chua v. Civil Service Commission, February 7, 1992, 206 SCRA
65; Achacoso v. Macaraig , 195 SCRA 235, 239, March 31, 1991.
WHEREFORE, the Petition is GRANTED insofar as it seeks legal In contrast, a temporary appointment is one made to fill a
standing for petitioner, but DENIED insofar as it prays for the reversal of vacancy in the absence of appropriate eligibles (ibid.).
the CSC Resolutions disapproving his appointment as department
14
Ferrer v. Hechanova, 125 Phil. 524, 528, January 25, 1967.
manager III of the Labor and Employment Center, Subic Bay
15
Umoso v. Civil Service Commission, 234 SCRA 617, 623, July
Metropolitan Authority. Costs against petitioner. 29, 1994; Español v. Civil Service Commission, 206 SCRA 715,
721, March 3, 1992.
16
Tomali v. Civil Service Commission, 238 SCRA 572, 576,
SO ORDERED.
December 1, 1994.
17
Tomali v. Civil Service Commission, Id., p. 575; Mitra v. Subido,
Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval- 128 Phil. 128, 143, September 15, 1967. See also Cortez v. Civil
Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Service Commission, 195 SCRA 216; 222, March 13, 1991.
Tinga, Chico-Nazario, and Garcia, JJ., concur. 18
PD 807, "The Civil Service Law," promulgated October 6, 1975.
Corona, J., on leave. Title I, Book V, EO 292, also provides:
"Section 12 Powers and Functions. — The Commission
shall have the following powers and functions:
Footnotes "x x x xxx xxx
1
Rollo, pp. 18-39. "(2) Prescribe, amend and enforce rules and regulations
2
Id., pp. 7-13. Third Division. Penned by Justice Marina L. Buzon, for carrying into effect the provisions of the Civil Service
with the concurrence of Justices Buenaventura J. Guerrero Law and other pertinent laws"
(Division chair) and Alicia L. Santos (member). 19
Aquino v. Civil Service Commission, 208 SCRA 240, 247, April
3
Id., pp. 14-15. 22, 1992; Mitra v. Subido, supra.
4
Assailed Decision, p. 6; rollo, p. 12. 20
Guieb v. Civil Service Commission, 229 SCRA 779, February 9,
5
Id., pp. 1-5 & 7-11. 1994; Lapinid v. Civil Service Commission, supra, p. 388; Central
6
Id., pp. 5-6 & 11-12 (citing People v. Pinca, 376 Phil. 377, Bank of the Philippines v. Civil Service Commission, 171 SCRA
November 17, 1999). 744, 752, April 10, 1989; Luego v. Civil Service Commission,
7
371 Phil. 17, August 9, 1999. supra, p. 333.
8
Assailed Decision, p. 5; rollo, p. 11. 21
Sevilla v. Parina, 128 Phil. 639, 643, October 30, 1967;
9
Assailed Resolution, p. 2; rollo, p. 15. Manalang v. Quitoriano, 94 Phil. 903, 911, April 30, 1954.
10
This case was deemed submitted for decision on July 23, 2003, 22
227 Phil. 303, August 5, 1986.
upon this Court's receipt of the Office of the Solicitor General's 23
Id., p. 307. See also Rimonte v. Civil Service Commission, 314
Memorandum, signed by Assistant Solicitor General Renan E. Phil. 421, 430, May 29, 1995.
Ramos and Associate Solicitor Tomas D. Tagra Jr. Respondent 24
Lapinid v. Civil Service Commission, 274 Phil. 381, 387, May
CSC's Memorandum, signed by Director Engelbert Anthony D. 14, 1991, per Cruz J. See also Jimenez v. Francisco, 100 Phil.
108
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.
109
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.
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 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.
110
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, Case List No. 1; Case 10
150-A Phil. 86, 101, April 11, 1972.
65
Tañada v. Tuvera, 230 Phil. 528, 535, December 29, 1986. See
FIRST DIVISION
also Commissioner of Internal Revenue v. Court of Appeals,
supra, p. 1018. At any rate, Memorandum Circular 21, s. 1994,
was allegedly published in the Manila Standard on June 14, 1994. G.R. No. 76633 October 18, 1988
CSC's Memorandum, p. 21; rollo, p. 165.
66
Debulgado v. Civil Service Commission, 237 SCRA 184, 199, EASTERN SHIPPING LINES, INC., petitioner,
September 26, 1994. vs.
67
Ibid. 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.

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.
111
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.
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
112
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 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
113
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.
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"
114
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
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 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.
115
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.