G.R. No.

221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.

COMELEC AND ESTRELLA C. ELAMPARO Respondents.

x-----------------------x

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,

vs.

COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
Court with extremely urgent application for an ex parte issuance of temporary restraining order/status
quo ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the
COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the
Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and
his wife. Three days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling
with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate
of Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe,
Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial
Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that
petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad
Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate
reflecting the court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in
the second half of 2005 that the lawyer who handled petitioner's adoption failed to secure from the
OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her adoptive
parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's omission
which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in
the name of Mary Grace Natividad Sonora Poe.4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by the
Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her
Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America
(U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where
she earned her Bachelor of Arts degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of
both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being
with her husband who was then based in the U.S., the couple flew back to the U.S. two days after the
wedding ceremony or on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992.12
Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines
on 10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport
No. 017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's
candidacy for President in the May 2004 elections. It was during this time that she gave birth to her
youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon
learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In
her earnest desire to be with her grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester;20 coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S.23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to
arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased
a condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second
half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot
were issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of
the family's remaining household belongings.29 She travelled back to the Philippines on 11 March
2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change
and abandonment of their address in the U.S.31 The family home was eventually sold on 27 April
2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4
May 2006 and started working for a major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon
City where they built their family home34 and to this day, is where the couple and their children have
been residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under the
same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on 10
July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She
also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This passport was
renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA.42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie
and Television Review and Classification Board (MTRCB).43 Before assuming her post, petitioner
executed an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation
of American Citizenship" before a notary public in Pasig City on 20 October 2010,44 in satisfaction of the
legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21 October 2010 petitioner
submitted the said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB.47
From then on, petitioner stopped using her American passport.48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States."49 On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken
her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing her
American citizenship.50 In the same questionnaire, the petitioner stated that she had resided outside of
the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the
United States" effective 21 October 2010.52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator
for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of
residence in the Philippines before May 13, 2013."53 Petitioner obtained the highest number of votes
and was proclaimed Senator on 16 May 2013. 54

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the Philippines
up to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A.
Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny
due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division.59 She is convinced that the COMELEC has jurisdiction over her petition.60 Essentially,
Elamparo's contention is that petitioner committed material misrepresentation when she stated in her
COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines for at least ten
(10) years and eleven (11) months up to the day before the 9 May 2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a foundling.62 Elamparo claimed that international law does
not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of reasoning,
petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is
not a natural-born Filipino citizen to begin with.64 Even assuming arguendo that petitioner was a
natural-born Filipino, she is deemed to have lost that status when she became a naturalized American
citizen.65 According to Elamparo, natural-born citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted
that assuming arguendo that petitioner is qualified to regain her natural-born status under R.A. No.
9225, she still fell short of the ten-year residency requirement of the Constitution as her residence could
only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said
Act. Also on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo
is of the belief that she failed to reestablish her domicile in the Philippines.67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo
warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the
Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-born Filipino
citizen nor was there any allegation that there was a willful or deliberate intent to misrepresent on her
part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency
qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where
they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for
President in the May 9, 2016 Elections and that the same is in full force and effect and has not been
withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as
May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No.
9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not
binding and should give way to evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a
purely political question, that is, should she serve as the country's next leader.68

After the parties submitted their respective Memoranda, the petition was deemed submitted for
resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's
COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May
2016 National and Local Elections, contained material representations which are false. The fallo of the
aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or
Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71 docketed as
SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify
her for the Presidency.72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown
parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood
relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory construction
that what is not included is excluded. He averred that the fact that foundlings were not expressly
included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that
foundlings have a nationality.76 According to Tatad, international conventions and treaties are not self-
executory and that local legislations are necessary in order to give effect to treaty obligations assumed
by the Philippines.77 He also stressed that there is no standard state practice that automatically confers
natural-born status to foundlings.78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or 2011.81
Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by
the fact that her husband stayed thereat and her frequent trips to the U.S.82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-
139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of
a natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated
under the said Act reacquires only their Philippine citizenship and will not revert to their original status
as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections
operates against her. Valdez rejected petitioner's claim that she could have validly reestablished her
domicile in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was
that petitioner did not meet the ten (10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA No.
15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of residency
required for said candidacy and that she made false entry in her COC when she stated that she is a legal
resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016.86 Contreras
contended that the reckoning period for computing petitioner's residency in the Philippines should be
from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved by the
BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be
valid evidence of reacquisition of her Philippine domicile since she was then living here as an American
citizen and as such, she was governed by the Philippine immigration laws.88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did
not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the
Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-
born status of petitioner which are not among the recognized grounds for the disqualification of a
candidate to an elective office.90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC.92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.93
Otherwise stated, she has a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI
declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of
adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-
born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of
choice in the Philippines as demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian
Hills.99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of
domicile are complied with.100 She reasoned out that there was no requirement that renunciation of
foreign citizenship is a prerequisite for the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a
mistake made in good faith.102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner
is not a natural-born citizen, that she failed to complete the ten (10) year residency requirement, and
that she committed material misrepresentation in her COC when she declared therein that she has been
a resident of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the
elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's
motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari
with urgent prayer for the issuance of an ex parte temporary restraining order/status quo ante order
and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were issued
by the Court enjoining the COMELEC and its representatives from implementing the assailed COMELEC
Resolutions until further orders from the Court. The Court also ordered the consolidation of the two
petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in
these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET
ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015
Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015
Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with
grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for
President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or
cancelled "on the exclusive ground" that she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into
the issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet
undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section
2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all
contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal
and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition
to other requirements, must present their platform or program of government; and accredit citizens'
arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those
which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to
this Constitution, or which are supported by any foreign government shall likewise be refused
registration.

Financial contributions from foreign governments and their agencies to political parties, organizations,
coalitions, or candidates related to elections constitute interference in national affairs, and, when
accepted, shall be an additional ground for the cancellation of their registration with the Commission, in
addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts
or omissions constituting election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation
of places where propaganda materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the
imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive,
order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which

was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation in
Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which
the COMELEC, in the exercise of its rule-making power under Art. IX, A, 6 of the Constitution, cannot do
it. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases
involving the right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. [Art. IX, C, 2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in 12
and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for public
office. In a word, their purpose is to eliminate a candidate from the race either from the start or during
its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office and the purpose of the proceedings for declaration
of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing as a candidate for a public office and vice
versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the Law does not imply that he does not suffer from any of [the]
disqualifications provided in 4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in
Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the very
acts for which his disqualification is being sought. That is why it is provided that if the grounds for
disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in
his favor will not be counted; and if for some reason he has been voted for and he has won, either he
will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after
the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial
duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of
candidacy that they are eligible for the position which they seek to fill, leaving the determination of their
qualifications to be made after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President,
Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, 15) The
purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of members
of Congress of the President and Vice President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the
amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of
a competent court, guilty of, or found by the Commission to be suffering from any disqualification
provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of
Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be
summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering
from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the
other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must beforehand be established in
a prior proceeding before an authority properly vested with jurisdiction. The prior determination of
qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her qualifications,
without a prior authoritative finding that he or she is not qualified, such prior authority being the
necessary measure by which the falsity of the representation can be found. The only exception that can
be conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions.
Such are, anyway, bases equivalent to prior decisions against which the falsity of representation can be
determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with,
as in this case, alleged false representations regarding the candidate's citizenship and residence, forced
the COMELEC to rule essentially that since foundlings108 are not mentioned in the enumeration of
citizens under the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in oral
arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain that such relationship is
indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her
natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and
Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents and is
therefore a natural-born Filipino. Parenthetically, the burden of proof was on private respondents to
show that petitioner is not a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her
because such status did not exclude the possibility that her parents were Filipinos, especially as in this
case where there is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether
such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)111 that from
1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number
of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the
Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census
statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos
and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were
1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing
ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%.
In the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were
270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740
Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was
found in 1968, the majority of the population in Iloilo was Filipino.112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City.1wphi1 She also has typical Filipino
features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature
and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino
features is abandoned in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the
province would be a Filipino, would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible
under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of
the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can
get pregnant and leave their newborn babies behind. We do not face a situation where the probability is
such that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a
foreigner. We need to frame our questions properly. What are the chances that the parents of anyone
born in the Philippines would be foreigners? Almost zero. What are the chances that the parents of
anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural
born Filipino children is 1:1357. This means that the statistical probability that any child born in the
Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on that
decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident
that the statistical probability that a child born in the Philippines would be a natural born Filipino will not
be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of poverty or
perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines
thinking those infants would have better economic opportunities or believing that this country is a
tropical paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has
ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a
theoretical chance that one among the thousands of these foundlings might be the child of not just one,
but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense.
Given the statistical certainty - 99.9% - that any child born in the Philippines would be a natural born
citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental
political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use
of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there
is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue,114 this
Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. The following
exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:

[We] would like to request a clarification from the proponent of the amendment. The gentleman refers
to natural children or to any kind of illegitimate children?

Sr. Rafols:

To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.

Sr. Montinola:

For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that
is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are
considered Spaniards, because the presumption is that a child of unknown parentage is the son of a
Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in the
Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:

There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:

But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:

The amendment should read thus:

"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of
unknown parentage."

Sr. Briones:

The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:

The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:

Does the gentleman accept the amendment or not?

Sr. Rafols:

I do not accept the amendment because the amendment would exclude the children of a Filipina with a
foreigner who does not recognize the child. Their parentage is not unknown and I think those of
overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as
Filipinos.

President:

The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.

Sr. Busion:

Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:

Mr. President, my humble opinion is that these cases are few and far in between, that the constitution
need [not] refer to them. By international law the principle that children or people born in a country of
unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision
on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any objection to the
notion that persons of "unknown parentage" are not citizens but only because their number was not
enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino
citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines,
and also foundlings; but this amendment was defeated primarily because the Convention believed that
the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them,
should be governed by statutory legislation. Moreover, it was believed that the rules of international law
were already clear to the effect that illegitimate children followed the citizenship of the mother, and
that foundlings followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal
for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the
constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that there
is no more need to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able
to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under
Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief Justice
Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the records of the 1935, 1973 and
1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on
those who wish to use the constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees full
respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity, reduce
social, economic, and political inequalities x x x" and Article XV, Section 3 which requires the State to
defend the "right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against foundlings on
account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in
the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides
that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on
citizens of the Philippines even though living abroad." Adoption deals with status, and a Philippine
adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a
child left by an unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also over
the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code
(Art. 15) adheres to the theory that jurisdiction over the status of a natural person is determined by the
latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being
a citizen of the Philippines, but not over the status of the petitioners, who are foreigners.120
(Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the
Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on
the Adoption of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption
Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to
"Filipino children" and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance of a
foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship." In the first place,
"having to perform an act" means that the act must be personally done by the citizen. In this instance,
the determination of foundling status is done not by the child but by the authorities.121 Secondly, the
object of the process is the determination of the whereabouts of the parents, not the citizenship of the
child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under
the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor.122 The Decree of Adoption issued on 13 May
1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly
refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming
petitioner's status as a foundling.123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation.124 On the other hand, generally accepted principles
of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of
the land even if they do not derive from treaty obligations. Generally accepted principles of
international law include international custom as evidence of a general practice accepted as law, and
general principles of law recognized by civilized nations.125 International customary rules are accepted
as binding as a result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.126 "General principles of
law recognized by civilized nations" are principles "established by a process of reasoning" or judicial
logic, based on principles which are "basic to legal systems generally,"127 such as "general principles of
equity, i.e., the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of Employment and Occupation."128 These are the same
core principles which underlie the Philippine Constitution itself, as embodied in the due process and
equal protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State.130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality and as far as possible, the right to know and be cared for by his or her
parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law
and their obligations under the relevant international instruments in this field, in particular where the
child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR).
Article 24 thereof provide for the right of every child "to acquire a nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national
or social origin, property or birth, the right, to such measures of protection as are required by his status
as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality
from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and
it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No.
473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18)
years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality
of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined by the rules applicable in cases where the
parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in
which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be
considered to have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is
not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of
the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article
15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or
ratified the "International Convention for the Protection of All Persons from Enforced Disappearance."
Yet, we ruled that the proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which needed
the ratification of a minimum of twenty states. Additionally, as petitioner points out, the Court was
content with the practice of international and regional state organs, regional state practice in Latin
America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134
where only four countries had "either ratified or acceded to"135 the 1966 "Convention on the
Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries of the European Common
Market had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on
recognition of foreign judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph
(c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are
fundamental principles underlying the Bill of Rights and which are "basic to legal systems generally,"136
support the notion that the right against enforced disappearances and the recognition of foreign
judgments, were correctly considered as "generally accepted principles of international law" under the
incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries
follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2
February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to presume foundlings as
having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who could
be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by
law, issued only to citizens. This shows that even the executive department, acting through the DFA,
considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution.
The presumption of natural-born citizenship of foundlings stems from the presumption that their
parents are nationals of the Philippines. As the empirical data provided by the PSA show, that
presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a misfortune
not of their own making. We cannot be restrictive as to their application if we are a country which calls
itself civilized and a member of the community of nations. The Solicitor General's warning in his opening
statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political status
or to accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No.
9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since
the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain
"Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.

In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include
Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation process that
restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which cited
Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of the former Filipino will allow
him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born
citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A.
No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may
be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even
if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen
thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET,
this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-
born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process
of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the
absence in said enumeration of a separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed
by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may
always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In
Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of
the legal system of the Philippines." This Court also said that "while the future may ultimately uncover a
doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment.
Consequently, the people's reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It
has been contended that the data required were the names of her biological parents which are precisely
unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to
an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and
which certificate "shall not bear any notation that it is an amended issue."150 That law also requires
that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the
Department [of Social Welfare and Development], or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to state
that her adoptive parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case
for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole
process undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false
material representation when she stated in her COC that she has before and until 9 May 2016 been a
resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner
must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the
requested information of "Period of Residence in the Philippines up to the day before May 09, 2016,"
she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a
beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines.
There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality;
2. an intention to remain there; and 3. an intention to abandon the old domicile.152 To successfully
effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a
bona fide intention of abandoning the former place of residence and establishing a new one and definite
acts which correspond with the purpose. In other words, there must basically be animus manendi
coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for
an indefinite period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight company to
arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines; e-
mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools starting June 2005 and for
succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and
parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006;
receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items
from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of
address; final statement from the First American Title Insurance Company showing sale of their U.S.
home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy where
petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa
Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed
with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming
that the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in
its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24
May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the
first two requisites, namely, physical presence and animus manendi, but maintained there was no
animus non-revertendi.154 The COMELEC disregarded the import of all the evidence presented by
petitioner on the basis of the position that the earliest date that petitioner could have started residence
in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In
this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v.
COMELEC. 157 During the oral arguments, the private respondents also added Reyes v. COMELEC.158
Respondents contend that these cases decree that the stay of an alien former Filipino cannot be
counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free
entry under a balikbayan stamp being insufficient. Since petitioner was still an American (without any
resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7
July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In
Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by the
candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not
involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship.
With the Court decreeing that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the
candidate admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who had not
even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She
was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month
stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is
not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from acquisition
of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of
petitioner is overwhelming and taken together leads to no other conclusion that she decided to
permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools,
getting quotes from the freight company, notifying the U.S. Post Office of the abandonment of their
address in the U.S., donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the Philippines and actually
re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine
schools, buying property here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her eventual application to
reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the years,
it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-
free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act
Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has been
naturalized abroad and "comes or returns to the Philippines." 163 The law institutes a balikbayan
program "providing the opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the country"164 in line with
the government's "reintegration program."165 Obviously, balikbayans are not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave
after one year. That visa-free period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive
and overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the
Court intended to have its rulings there apply to a situation where the facts are different. Surely, the
issue of residence has been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her
2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May
13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine
resident only in November 2006. In doing so, the COMELEC automatically assumed as true the
statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S. house was sold and her husband
returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could
be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May
2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change
which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not have revised the query if it did
not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and
the return of her husband is plausible given the evidence that she had returned a year before. Such
evidence, to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a
COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put
seven (7) months as her period of residence where the required period was a minimum of one year. We
said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not an individual has satisfied the constitutions residency
qualification requirement." The COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC
done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated the
pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically
returned here on 24 May 2005 not because it was false, but only because COMELEC took the position
that domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006.
However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was
here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years
and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event
from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006
under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner
recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the
United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the
press. Respondents have not disputed petitioner's evidence on this point. From that time therefore
when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the
circumstances that surrounded the statement were already matters of public record and were not
hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto.
Her Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the
2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood the question and
could have truthfully indicated a longer period. Her answer in the SET case was a matter of public
record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she could
not be said to have been attempting to hide her erroneous statement in her 2012 COC for Senator
which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the cancellation
of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only
refer to a material fact (eligibility and qualifications for elective office), but should evince a deliberate
intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must
be made with an intention to deceive the electorate as to one's qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non revertedi to
the United States of America. The veracity of the events of coming and staying home was as much as
dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her
COC for Senator" which the COMELEC said "amounts to a declaration and therefore an admission that
her residence in the Philippines only commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as
already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of
the person that determines residence for purposes of compliance with the constitutional requirement of
residency for election as President. It ignores the easily researched matter that cases on questions of
residency have been decided favorably for the candidate on the basis of facts of residence far less in
number, weight and substance than that presented by petitioner.169 It ignores, above all else, what we
consider as a primary reason why petitioner cannot be bound by her declaration in her COC for Senator
which declaration was not even considered by the SET as an issue against her eligibility for Senator.
When petitioner made the declaration in her COC for Senator that she has been a resident for a period
of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her declared years
of residence. It was uncontested during the oral arguments before us that at the time the declaration
for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and
that the general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005.
Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go
to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a
new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the
family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's
abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on
4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the
exclusive ground of false representation, to consider no other date than that mentioned by petitioner in
her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one
and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent,
stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the
petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the
Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the
Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of
the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May
2016.

SO ORDERED.

Grace Poe vs COMELEC

(Case Digest: GR 221697, GR 221698-700 March 8, 2016)

Facts:

In her COC for presidency for the May 2016 elections, Grace Poe declared that she is a natural-born
citizen and that her residence in the Philippines up to the day before 9 May 2016 would be 10 years and
11 months counted from 24 May 2005.

May 24, 2005 was the day she came to the Philippines after deciding to stay in the PH for good. Before
that however, and even afterwards, she has been going to and fro between US and Philippines. She was
born in 1968, found as newborn infant in Iloilo, and was legally adopted. She immigrated to the US in
1991 and was naturalized as American citizen in 2001. On July 18, 2006, the BI granted her petition
declaring that she had reacquired her Filipino citizenship under RA 9225. She registered as a voter and
obtained a new Philippine passport. In 2010, before assuming her post as an appointed chairperson of
the MTRCB, she renounced her American citizenship to satisfy the RA 9225 requirement . From then on,
she stopped using her American passport.

Petitions were filed before the COMELEC to deny or cancel her candidacy on the ground particularly,
among others, that she cannot be considered a natural-born Filipino citizen since she cannot prove that
her biological parents or either of them were Filipinos. The COMELEC en banc cancelled her candidacy
on the ground that she is in want of citizenship and residence requirements, and that she committed
material misrepresentations in her COC.

On certiorari, the SC reversed the ruling and held (9-6 votes) that Poe is qualified as a candidate for
Presidency. Three justices, however, abstained to vote on the natural-born citizenship issue.

Issue 1: W/N the COMELEC has jurisdiction to rule on the issue of qualifications of candidates (Read
Dissent)

Held:

No. Article IX-C, Sec 2 of the Constitution provides for the powers and functions of the COMELEC, and
deciding on the qualifications or lack thereof of a candidate is not one among them.

In contrast, the Constitution provides that only the SET and HRET tribunals have sole jurisdiction over
the election contests, returns, and qualifications of their respective members, whereas over the
President and Vice President, only the SC en banc has sole jurisdiction. As for the qualifications of
candidates for such positions, the Constitution is silent. There is simply no authorized proceeding in
determining the ineligibility of candidates before elections. Such lack of provision cannot be supplied by
a mere rule, and for the COMELEC to assimilate grounds for ineligibility into grounds for disqualification
in Rule 25 in its rules of procedures would be contrary to the intent of the Constitution.

Hence, the COMELEC committed grave abuse of discretion when it decided on the qualification issue of
Grace as a candidate in the same case for cancellation of her COC.

Issue 2: W/N Grace Poe-Llamanzares is a natural-born Filipino citizen (Read Dissent)

Held:

Yes, Grace Poe might be and is considerably a natural-born Filipino. For that, she satisfies one of the
constitutional requirements that only natural-born Filipinos may run for presidency.
First, there is a high probability that Grace Poes parents are Filipinos. Her physical features are typical
of Filipinos. The fact that she was abandoned as an infant in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than 99% chance that a child born
in such province is a Filipino is also a circumstantial evidence of her parents nationality. That
probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised
Rules on Evidence. To assume otherwise is to accept the absurd, if not the virtually impossible, as the
norm.

Second, by votes of 7-5, the SC pronounced that foundlings are as a class, natural-born citizens. This is
based on the finding that the deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. While the 1935 Constitutions enumeration is
silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to foundlings, the SC felt the need to
examine the intent of the framers.

Third, that foundlings are automatically conferred with natural-born citizenship is supported by treaties
and the general principles of international law. Although the Philippines is not a signatory to some of
these treaties, it adheres to the customary rule to presume foundlings as having born of the country in
which the foundling is found.

Issue 3: W/N Grace Poe satisfies the 10-year residency requirement

Held:

Yes. Grace Poe satisfied the requirements of animus manendi coupled with animus revertendi in
acquiring a new domicile.

Grace Poes domicile had been timely changed as of May 24, 2005, and not on July 18, 2006 when her
application under RA 9225 was approved by the BI. COMELECs reliance on cases which decree that an
aliens stay in the country cannot be counted unless she acquires a permanent resident visa or
reacquires her Filipino citizenship is without merit. Such cases are different from the circumstances in
this case, in which Grace Poe presented an overwhelming evidence of her actual stay and intent to
abandon permanently her domicile in the US. Coupled with her eventual application to reacquire
Philippine citizenship and her familys actual continuous stay in the Philippines over the years, it is clear
that when Grace Poe returned on May 24, 2005, it was for good.
Issue 4: W/N the Grace Poes candidacy should be denied or cancelled for committing material
misrepresentations in her COC

Held:

No. The COMELEC cannot cancel her COC on the ground that she misrepresented facts as to her
citizenship and residency because such facts refer to grounds for ineligibility in which the COMELEC has
no jurisdiction to decide upon. Only when there is a prior authority finding that a candidate is suffering
from a disqualification provided by law or the Constitution that the COMELEC may deny due course or
cancel her candidacy on ground of false representations regarding her qualifications.

In this case, by authority of the Supreme Court Grace Poe is now pronounced qualified as a candidate
for the presidency. Hence, there cannot be any false representations in her COC regarding her
citizenship and residency. ##

Poe came home on May 24, 2005 In early 2006, Poe and husband acquired a property in Corinthian Hills
in Quezon City where they built their family home. On July 7, 2006, Poe took her Oath of Allegiance to
the Republic of the Philippines pursuant to R.A. 9225. Poe then registered as voter in August 2006

What the petitioners filed focus on establishing her ineligibility, hence, they fall within the exclusive
jurisdiction of the Presidential Electoral Tribunal, not the COMELEC. 3.

ISSUES AND RATIO: 1 Whether the COMELEC has jurisdiction to disqualify POE

The procedure and the conclusions from which the Resolutions of the COMELEC emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction.

The issue before the COMELEC is whether the COC should be denied due course on the exclusive
ground that she made in the certificate a false material representation. COMELEC should restra
in itself from going into the issue of qualifications of the candidate. It cannot, in the same cancellation
case, decide the qualification or lack thereof of a candidate. Not one of the enumerated powers of the
COMELEC as stated in Article IX C, Sec. 2 of the Constitution grants the commission the power to
determine the qualifications of a candidate. Such powers are granted to the Electoral Tribunal as stated
in Article VI Section 17 and the Supreme Court under Article VII, Section 4 of the Constitution. Insofar as
the qualification of a candidate is concerned, Rule 25 and Rule 23 of the COMELEC rules do not allow,
are not authorization and are not vestment of jurisdiction for the COMELEC to determine the
qualification of a candidate. The facts of qualification must first be established in a prior proceeding
before an authority vested with jurisdiction. Prior determination of qualification may be by statute, by
an executive order or by a judgment of a competent court or tribunal.

Lacking this prior determination, the certificate of candidacy cannot be cancelled or denied due

course on ground of false representations regarding a candidates qualifications except if there

exists self-evident facts of unquestioned or unquestionable veracity and judicial confessions. In

this light the COMELEC cannot cancel Poes certificate of candidacy lacking prior determination of

her qualifications by a competent body.

3 Whether as a foundling, Poe is a natural born Citizen

Foundlings are as a class, natural born citizens.

Whether Poes repatriation resulted to reacquisition of natural born citizenship.

The COMELEC arrogantly disregarded jurisprudence on the matter of repatriation which states that
repatriation results in the recovery of the original nationality. A natural born citizen before he lost his
Philippine nationality will be restored to his former status as natural born Filipino after repatriation
(Benson v. HRET, Pareno v. Commission on Audit etc). In passing R.A. 9225, Congress saw it fit to decree
that natural born citizenship may be reacquired even if it has been lost. It is

not for the COMELEC to disagree with the Congress determination.

Neither is repatriation an act to acquire or perfect ones citizenship. In

the case of Bengson, the Court pointed out that there are only two types of citizens under the 1987
constitution: natural born and naturalized. There is no third category for repatriated citizens. The
COMELEC cannot reverse a judicial precedent. Hence, CO

MELECs decision is wrapped with grave abuse of

discretion.

5 Whether Poe is a resident of the Philippine for 10 years

Poe alleged that her residency should be counted from May 24, 2005 when she returned for good from
the US. There are three requisites to acquire a new domicile 1. Residence or bodily presence in a new
locality 2. Intention to remain (

animus manendi

) and 3. Intention to abandon the old domicile (

animus non-revertend

i). The purpose to remain in or at the domicile of choice must be for an indefinite period of time, the
change of residence must be voluntary and the residence at the place chosen for the new domicile must
be actual.

Poe presented voluminous evidence showing that she and her family abandoned their US domicile and
relocated to the Philippines for good. These evidence include former US passport showing her arrival on
May 24, 2005 and her return to the Philippines every time she travelled abroad, email correspondences
with freight company to arrange for the shipment of household items as well as with the pet Bureau;
school records of her children showing enrolment in the Philippine to the Philippine schools starting on
June 2005 etc.

COMELEC refused to consider the petitioners domicile has been timely changed as of May 24,

2005 and maintained that although there is physical presence and

animus manendi,

there is no

animus revertendi.

The decision of the COMELEC is hereby annulled and set aside. Poe is thus declared qualified to be a
candidate for President in the National and Local Election on May 9, 2016.
EN BANC

ATTY. EVILLO C. PORMENTO, G.R. No. 191988

Petitioner,

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,*

versus PERALTA,**

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA and

SERENO, JJ.

JOSEPH ERAP EJERCITO

ESTRADA and COMMISSION

ON ELECTIONS,

Respondents.

Promulgated:

August 31, 2010

x--------------------------------------------------x

RESOLUTION
CORONA, C.J.:

What is the proper interpretation of the following provision of Section 4, Article VII of the Constitution:
[t]he President shall not be eligible for any reelection?

The novelty and complexity of the constitutional issue involved in this case present a temptation that
magistrates, lawyers, legal scholars and law students alike would find hard to resist. However, prudence
dictates that this Court exercise judicial restraint where the issue before it has already been mooted by
subsequent events. More importantly, the constitutional requirement of the existence of a case or an
actual controversy for the proper exercise of the power of judicial review constrains us to refuse the
allure of making a grand pronouncement that, in the end, will amount to nothing but a non-binding
opinion.

The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban on the
President from any reelection. Private respondent was elected President of the Republic of the
Philippines in the general elections held on May 11, 1998. He sought the presidency again in the general
elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private respondents
candidacy and filed a petition for disqualification. However, his petition was denied by the Second
Division of public respondent Commission on Elections (COMELEC).[1] His motion for reconsideration
was subsequently denied by the COMELEC en banc.[2]

Petitioner filed the instant petition for certiorari[3] on May 7, 2010. However, under the Rules of Court,
the filing of such petition would not stay the execution of the judgment, final order or resolution of the
COMELEC that is sought to be reviewed.[4] Besides, petitioner did not even pray for the issuance of a
temporary restraining order or writ of preliminary injunction. Hence, private respondent was able to
participate as a candidate for the position of President in the May 10, 2010 elections where he garnered
the second highest number of votes.[5]

Private respondent was not elected President the second time he ran. Since the issue on the proper
interpretation of the phrase any reelection will be premised on a persons second (whether immediate or
not) election as President, there is no case or controversy to be resolved in this case. No live conflict of
legal rights exists.[6] There is in this case no definite, concrete, real or substantial controversy that
touches on the legal relations of parties having adverse legal interests.[7] No specific relief may
conclusively be decreed upon by this Court in this case that will benefit any of the parties herein.[8] As
such, one of the essential requisites for the exercise of the power of judicial review, the existence of an
actual case or controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies.[9] The Court is not empowered
to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot
affect the result as to the thing in issue in the case before it.[10] In other words, when a case is moot, it
becomes non-justiciable.[11]
An action is considered moot when it no longer presents a justiciable controversy because the issues
involved have become academic or dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has been overtaken by
subsequent events.[12]

Assuming an actual case or controversy existed prior to the proclamation of a President who has been
duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of
that elections, private respondent was not elected President for the second time. Thus, any discussion
of his reelection will simply be hypothetical and speculative. It will serve no useful or practical purpose.

Accordingly, the petition is denied due course and is hereby DISMISSED.

SO ORDERED.

Facts:

Estrada was elected President of the Republic of the Philippines in the May 1998 elections. He sought
the presidency again in the May 2010 elections. Pormento opposed Estradas candidacy and filed a
petition for disqualification. COMELEC (Division) denied his petition as well as his subsequent Motion for
Reconsideration (En Banc). Pormento then filed the present petition for certiorari before the Court. In
the meantime, Estrada was able to participate as a candidate for President in the May 10, 2010 elections
where he garnered the second highest number of votes.

Issue:

Is Estrada disqualified to run for presidency in the May 2010 elections in view of the prohibition in the
Constitution which states that: "[t]he President shall not be eligible for any reelection?

Held:

Private respondent was not elected President the second time he ran. Since the issue on the proper
interpretation of the phrase any reelection will be premised on a persons second (whether immediate or
not) election as President, there is no case or controversy to be resolved in this case. No live conflict of
legal rights exists. There is in this case no definite, concrete, real or substantial controversy that touches
on the legal relations of parties having adverse legal interests. No specific relief may conclusively be
decreed upon by this Court in this case that will benefit any of the parties herein. As such, one of the
essential requisites for the exercise of the power of judicial review, the existence of an actual case or
controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies.The Court is not empowered to
decide moot questions or abstract propositions, or to declare principles or rules of law which cannot
affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it
becomes non-justiciable.

An action is considered moot when it no longer presents a justiciable controversy because the issues
involved have become academic or dead or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has been overtaken by
subsequent events.

Assuming an actual case or controversy existed prior to the proclamation of a President who has been
duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of
that elections, private respondent was not elected President for the second time. Thus, any discussion
of his reelection will simply be hypothetical and speculative. It will serve no useful or practical purpose.
(Pormento vs. Estrada, G.R. No. 191988, August 31, 2010)
EN BANC

ATTY. ROMULO B. MACALINTAL,

Petitioner,

- versus -

PRESIDENTIAL ELECTORAL TRIBUNAL,

Respondent.

G.R. No. 191618

Present:
CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

Promulgated:

June 7, 2011

x-----------------------------------------------------------------------------------------x

RESOLUTION

NACHURA, J.:
Before us is a Motion for Reconsideration filed by petitioner Atty. Romulo B. Macalintal of our
Decision[1] in G.R. No. 191618 dated November 23, 2010, dismissing his petition and declaring the
establishment of respondent Presidential Electoral Tribunal (PET) as constitutional.

Petitioner reiterates his arguments on the alleged unconstitutional creation of the PET:

1. He has standing to file the petition as a taxpayer and a concerned citizen.

2. He is not estopped from assailing the constitution of the PET simply by virtue of his appearance as
counsel of former president Gloria Macapagal-Arroyo before respondent tribunal.

3. Section 4, Article VII of the Constitution does not provide for the creation of the PET.

4. The PET violates Section 12, Article VIII of the Constitution.

To bolster his arguments that the PET is an illegal and unauthorized progeny of Section 4, Article VII of
the Constitution, petitioner invokes our ruling on the constitutionality of the Philippine Truth
Commission (PTC).[2] Petitioner cites the concurring opinion of Justice Teresita J. Leonardo-de Castro
that the PTC is a public office which cannot be created by the President, the power to do so being
lodged exclusively with Congress. Thus, petitioner submits that if the President, as head of the Executive
Department, cannot create the PTC, the Supreme Court, likewise, cannot create the PET in the absence
of an act of legislature.

On the other hand, in its Comment to the Motion for Reconsideration, the Office of the Solicitor General
maintains that:

1. Petitioner is without standing to file the petition.

2. Petitioner is estopped from assailing the jurisdiction of the PET.

3. The constitution of the PET is on firm footing on the basis of the grant of authority to the [Supreme]
Court to be the sole judge of all election contests for the President or Vice-President under paragraph 7,
Section 4, Article VII of the 1987 Constitution.

Except for the invocation of our decision in Louis Barok C. Biraogo v. The Philippine Truth Commission
of 2010,[3] petitioner does not allege new arguments to warrant reconsideration of our Decision.

We cannot agree with his insistence that the creation of the PET is unconstitutional. We reiterate that
the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal
grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution is sound and
tenable. The provision reads:

Sec. 4. x x x.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.

We mapped out the discussions of the Constitutional Commission on the foregoing provision and
concluded therefrom that:

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional
Commission. On the exercise of this Courts judicial power as sole judge of presidential and vice-
presidential election contests, and to promulgate its rules for this purpose, we find the proceedings in
the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY PROMULGATE ITS
RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the
Supreme Court exclusive authority to enact the necessary rules while acting as sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect
to its internal procedure is already implicit under the Article on the Judiciary; considering, however, that
according to the Commissioner, the purpose of this is to indicate the sole power of the Supreme Court
without intervention by the legislature in the promulgation of its rules on this particular point, I think I
will personally recommend its acceptance to the Committee.

xxxx

MR. NOLLEDO x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership from
both Houses. But my question is: It seems to me that the committee report does not indicate which
body should promulgate the rules that shall govern the Electoral Tribunal and the Commission on
Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body
distinct and independent already from the House, and so with the Commission on Appointments also. It
will have the authority to promulgate its own rules.

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties.
This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who
will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially
justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time
of the Supreme Court sitting en banc would be occupied with it considering that they will be going over
millions and millions of ballots or election returns, Madam President.

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado and Fr. Joaquin Bernas both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of
Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a political
matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted provision not
impinge on the doctrine of separation of powers between the executive and the judicial departments of
the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It
was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the
judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act
7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they
are cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral
tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that cannot be
given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that
election, Lopez was declared winner. He filed a protest before the Supreme Court because there was a
republic act which created the Supreme Court as the Presidential Electoral Tribunal. The question in this
case was whether new powers could be given the Supreme Court by law. In effect, the conflict was
actually whether there was an attempt to create two Supreme Courts and the answer of the Supreme
Court was: "No, this did not involve the creation of two Supreme Courts, but precisely we are giving new
jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various
jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary
to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory
but it is not an infringement on the separation of powers because the power being given to the Supreme
Court is a judicial power.

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as
restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET
in our country cannot be denied.[4]

Stubbornly, despite the explicit reference of the Members of the Constitutional Commission to a
Presidential Electoral Tribunal, with Fr. Joaquin Bernas categorically declaring that in crafting the last
paragraph of Section 4, Article VII of the Constitution, they constitutionalize[d] what was statutory,
petitioner continues to insist that the last paragraph of Section 4, Article VII of the Constitution does not
provide for the creation of the PET. Petitioner is adamant that the fact that [the provision] does not
expressly prohibit [the] creation [of the PET] is not an authority for the Supreme Court to create the
same.

Petitioner is going to town under the misplaced assumption that the text of the provision itself was the
only basis for this Court to sustain the PETs constitutionality.

We reiterate that the PET is authorized by the last paragraph of Section 4, Article VII of the Constitution
and as supported by the discussions of the Members of the Constitutional Commission, which drafted
the present Constitution.
The explicit reference by the framers of our Constitution to constitutionalizing what was merely
statutory before is not diluted by the absence of a phrase, line or word, mandating the Supreme Court
to create a Presidential Electoral Tribunal.

Suffice it to state that the Constitution, verbose as it already is, cannot contain the specific wording
required by petitioner in order for him to accept the constitutionality of the PET.

In our Decision, we clarified the structure of the PET:

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as
the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court
was able to dispose of each case in a period of one year as provided by law. Of course, that was
probably during the late 1960s and early 1970s. I do not know how the present Supreme Court would
react to such circumstances, but there is also the question of who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided
for the hearings and there is not time limit or duration for the election contest to be decided by the
Supreme Court. Also, we will have to consider the historical background that when R.A. 1793, which
organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least three famous
election contests were presented and two of them ended up in withdrawal by the protestants out of
sheer frustration because of the delay in the resolution of the cases. I am referring to the electoral
protest that was lodged by former President Carlos P. Garcia against our "kabalen" former President
Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo
Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to have a
decision adverse to him. The votes were being counted already, and he did not get what he expected so
rather than have a decision adverse to his protest, he withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court
this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties.
This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who
will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially
justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time
of the Supreme Court sitting en banc would be occupied with it considering that they will be going over
millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent
upon they key number of teams of revisors. I have no experience insofar as contests in other offices are
concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before
teams of three, generally, a representative each of the court, of the protestant and of the "protestee." It
is all a questions of how many teams are organized. Of course, that can be expensive, but it would be
expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of problems, and
the court would only go over the objected votes on which the parties could not agree. So it is not as
awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the
revision of the ballots because each party would have to appoint one representative for every team, and
that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner's experience which he is sharing with us, what would
be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to
dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.[5]

Judicial power granted to the Supreme Court by the same Constitution is plenary. And under the
doctrine of necessary implication, the additional jurisdiction bestowed by the last paragraph of Section
4, Article VII of the Constitution to decide presidential and vice-presidential elections contests includes
the means necessary to carry it into effect. Thus:
Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to
undertake the Herculean task of deciding election protests involving presidential and vice-presidential
candidates in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was
made in response to the concern aired by delegate Jose E. Suarez that the additional duty may prove too
burdensome for the Supreme Court. This explicit grant of independence and of the plenary powers
needed to discharge this burden justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication. We cannot overemphasize that the abstraction of the PET from the explicit grant of power
to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme
Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this
authority is not specified in the provision, the grant of power does not contain any limitation on the
Supreme Court's exercise thereof. The Supreme Court's method of deciding presidential and vice-
presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative
conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision
for the Supreme Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate
Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET), which we have
affirmed on numerous occasions.[6]

Next, petitioner still claims that the PET exercises quasi-judicial power and, thus, its members violate the
proscription in Section 12, Article VIII of the Constitution, which reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.

We dispose of this argument as we have done in our Decision, viz.:

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." The power was expanded, but it
remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests
as essentially an exercise of judicial power.

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested
in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels - city, provincial, and regional, as well as congressional and senatorial - exclusive and
original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral
Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they
are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of
judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C
(for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the
Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their
decisions are still subject to judicial review - via a petition for certiorari filed by the proper party - if
there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or
excess of jurisdiction.

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential
election contest, it performs what is essentially a judicial power. In the landmark case of Angara v.
Electoral Commission, Justice Jose P. Laurel enucleated that "it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction
with latter's exercise of judicial power inherent in all courts, the task of deciding presidential and vice-
presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a
derivative of the plenary judicial power allocated to courts of law, expressly provided in the
Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the
PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely,
the petitioner will be among the first to acknowledge that this is not so. The Constitution which, in
Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and
House Electoral Tribunals, respectively, effectively exempts the Justices-Members thereof from the
prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article
VII, which exempts the Members of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court were
designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution
independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v.
State of Maryland proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for
the exercise of this power, as intended by the Constitution and specifically mentioned by the
Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET.
Thus, a microscopic view, like the petitioner's, should not constrict an absolute and constitutional grant
of judicial power.[7]

Finally, petitioners application of our decision in Biraogo v. Philippine Truth Commission[8] to the
present case is an unmitigated quantum leap.

The decision therein held that the PTC finds justification under Section 17, Article VII of the Constitution.
A plain reading of the constitutional provisions, i.e., last paragraph of Section 4 and Section 17, both of
Article VII on the Executive Branch, reveals that the two are differently worded and deal with separate
powers of the Executive and the Judicial Branches of government. And as previously adverted to, the
basis for the constitution of the PET was, in fact, mentioned in the deliberations of the Members of the
Constitutional Commission during the drafting of the present Constitution.

WHEREFORE, the Motion for Reconsideration is DENIED. Our Decision in G.R. No. 191618 STANDS.

SO ORDERED.

Macalintal vs PET, GR 191618, June 7, 2011

Posted by Pius Morados on November 13, 2011

(Admin Law, PET, Quasi-judicial power)

Facts: Par 7, Sec 4, Art VII of the 1987 Constitution provides: The Supreme Court, sitting en banc, shall
be the sole judge of all contests relating to the election, returns, and qualifications of the President or
Vice-President, and may promulgate its rules for the purpose.

Sec 12, Art. VIII of the Constitution provides: The Members of the Supreme Court and of other courts
established by law shall not be designated to any agency performing quasi-judicial or administrative
functions.

The case at bar is a motion for reconsideration filed by petitioner of the SCs decision dismissing the
formers petition and declaring the establishment of the respondent PET as constitutional.

Petitioner argues that PET is unconstitutional on the ground that Sec 4, Art VII of the Constitution does
not provide for the creation of the PET, and it violates Sec 12, Art VIII of the Constitution.

The Solicitor General maintains that the constitution of the PET is on firm footing on the basis of the
grant of authority to the Supreme Court to be the sole judge of all election contests for the President or
Vice-President under par 7, Sec 4, Art VII of the Constitution.

Issue:

Whether or not PET is constitutional.

Whether or not PET exercises quasi-judicial power.

Held:

Yes. The explicit reference of the Members of the Constitutional Commission to a Presidential Electoral
Tribunal, with Fr. Joaquin Bernas categorically declaring that in crafting the last paragraph of Sec. 4, Art
VII of the 1987 Constitution, they constitutionalized what was statutory. Judicial power granted to the
Supreme Court by the same Constitution is plenary. And under the doctrine of necessary implication,
the additional jurisdiction bestowed by the last paragraph of Section 4, Article VII of the Constitution to
decide presidential and vice-presidential elections contests includes the means necessary to carry it into
effect.

No. The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power shall be vested in one Supreme Court and in such lower courts as may be
established by law. The set up embodied in the Constitution and statutes characterize the resolution of
electoral contests as essentially an exercise of judicial power. When the Supreme Court, as PET, resolves
a presidential or vice-presidential election contest, it performs what is essentially a judicial power.

The COMELEC, HRET and SET are not, strictly and literally speaking, courts of law. Although not courts of
law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an
exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2),
Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals)
of the Constitution.
G.R. No. 191805 November 15, 2011

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
H. RODRIGUEZ, NORIEL H. RODRIGUEZ, Petitioner,

vs.

GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN
BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS,
COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC
under the name "HARRY," ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT CALLAGAN,
Respondents.

x------------------------x

G.R. No. 193160

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
H. RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE
VERA, 1st LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C.
PASICOLAN and VICENTE A. CALLAGAN, Petitioners,

vs.

NORIEL H. RODRIGUEZ, Respondent.

DECISION

SERENO, J.:

Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari dated
20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August 2010 (G.R. No.
193160).1 Both Petitions assail the 12 April 2010 Decision of the Court of Appeals, the dispositive
portion of which reads:

WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.
Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt. Ameto G.
Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S.
Matutina, or their replacements in their official posts if they have already vacated the same, are
ORDERED to furnish this Court within five (5) days from notice of this decision, official or unofficial
reports pertaining to petitioner covering but not limited to intelligence reports, operation reports and
provost marshal reports prior to, during and subsequent to September 6, 2009 made by the 5th
Infantry Division, Philippine Army, its branches and subsidiaries, including the 17th Infantry Battalion,
Philippine Army.

The above-named respondents are also DIRECTED to refrain from using the said reports in any
transaction or operation of the military. Necessarily, the afore-named respondents are ORDERED to
expunge from the records of the military all documents having any reference to petitioner.

Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame
Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no further
violation of petitioners rights to life, liberty and security is committed against the latter or any member
of his family.

The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her
presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents Calog
and George Palacpac or Harry for lack of merit.

Petitioners prayer for issuance of a temporary protection order and inspection order is DENIED.

Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160. He is a
member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with
Kilusang Magbubukid ng Pilipinas (KMP).

On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General (PDG.)
Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.)
Remegio M. De Vera, First Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E.
Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. Callagan (Callagan) are
respondents in G.R. No. 191805 and petitioners in G.R. No. 193160. At the time the events relevant to
the present Petitions occurred, former President Arroyo was the President of the Philippines. PDG.
Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt. Matutina and Lt. Col. Mina were officers of the
Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special Investigators of the
Commission on Human Rights (CHR) in Region II.
Antecedent Facts

Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya,
making its members targets of extrajudicial killings and enforced disappearances.2

On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard a
tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him into a
car. Inside the vehicle were several men in civilian clothes, one of whom was holding a .45 caliber pistol.
Subsequently, three more persons arrived, and one of them carried a gun at his side. Two men boarded
the car, while the others rode on the tricycle.3

The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started
punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved around the
area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to being a member of
the New Peoples Army (NPA), but he remained silent. The car then entered a place that appeared to be
a military camp. There were soldiers all over the area, and there was a banner with the word "Bravo"
written on it. Rodriguez later on learned that the camp belonged to the 17th Infantry Battalion of the
Philippine Army.4

Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his
membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men hit
him on the head to wake him up. After the interrogation, two of the men guarded him, but did not allow
him to sleep.5

In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and made
him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the head and
threatened to kill him. When the car stopped after about ten minutes, the soldiers brought him to a
room, removed his blindfold, and forced him to confess to being a member of the NPA. During the
interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was detained inside the room
for the entire day. The soldiers tied his stomach to a papag, and gave him rice and viand. Fearing that
the food might be poisoned, he refused to eat anything. He slept on the papag while being tied to it at
the waist.6

On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and
Mission. While passing houses along the way, the men asked him if his contacts lived in those houses.
When he failed to answer, a soldier pointed a gun to his head and threatened to kill him and his family.
Because he remained silent, the soldiers beat him and tied him up. The vehicle returned to the military
camp at past 1:00 p.m., where he was again subjected to tactical interrogation about the location of an
NPA camp and his alleged NPA comrades. He suffered incessant mauling every time he failed to
answer.7

At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide on
their way to an NPA camp in Birao. Accompanying them was a man named Harry, who, according to the
soldiers, was an NPA member who had surrendered to the military. Harry pointed to Rodriguez and
called him a member of the NPA. He also heard Harry tell the soldiers that the latter knew the area well
and was acquainted with a man named Elvis. The soldiers loaded Rodriguez into a military truck and
drove to Tabbak, Bugey. While he was walking with the soldiers, he noticed a soldier with the name tag
"Matutina," who appeared to be an official because the other soldiers addressed him as "sir."8

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told him
that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to convince Elvis
to disclose the location of the NPA camp. They brought the two to the mountains, where both were
threatened with death. When the soldiers punched Elvis, Rodriguez told them that he would reveal the
location of the NPA camp if they let Elvis go home. They finally released Elvis around 3:00 p.m. that day.
The soldiers and Rodriguez spent the next three nights in the mountains.9

On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of the
NPA camp. He was blindfolded and warned to get ready because they would beat him up again in the
military camp. Upon arrival therein, they brought him to the same room where he had first been
detained, and two soldiers mauled him again. They repeatedly punched and kicked him. In the
afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to over-fatigue
and extreme body pain. The soldiers, however, hit him again. After giving him a pen and a piece of
paper, they ordered him to write down his request for rice from the people. When he refused, the
soldiers maltreated him once more.10

On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had
surrendered in an encounter in Cumao, and

that the soldiers did not shoot him because he became a military asset in May. When he refused to sign
the document, he received another beating. Thus, he was compelled to sign, but did so using a different
signature to show that he was merely coerced.11

The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men
appearing therein. When he told them that he did not recognize the individuals on the photos, the
soldiers instructed him to write down the name of his school and organization, but he declined. The
soldiers then wrote something on the paper, making it appear that he was the one who had written it,
and forced him to sign the document. The soldiers took photographs of him while he was signing.
Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did not only receive
another beating, but was also electrocuted. The torture lasted for about an hour.12

At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the
mountains, where he saw Matutina again. They all spent the night there.13

In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they
stopped, the soldiers took his photograph and asked him to name the location of the NPA camp.
Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and wear a
white polo shirt handed to him. He was then brought to the Enrile Medical Center, where Dr. Juliet
Ramil (Dr. Ramil) examined him.14 When the doctor asked him why he had bruises and contusions, he
lied and told her that he sustained them when he slipped, as he noticed a soldier observing him. Dr.
Ramils medical certificate indicated that he suffered from four hematomas in the epigastric area, chest
and sternum.15

Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of him
while he was eating with them. They also asked him to point to a map in front of him and again took his
photograph. Later, they told him that he would finally see his mother. 16

Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper stating
that he was a surrenderee and was never beaten up. Scared and desperate to end his ordeal, he signed
the paper and was warned not to report anything to the media.17

Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave
him a pair of jeans and perfume. While he was having breakfast, the two soldiers guarding him
repeatedly reminded him not to disclose to the media his experience in the camp and to say instead that
he had surrendered to the military.18

At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by several
men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of the soldiers
tell Wilma that he had surrendered to the military and had long been its asset. His brother, Rodel
Rodriguez (Rodel), informed him that the men accompanying them were from the CHR, namely,
Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up his shirt, and one of
the CHR employees took photographs of his bruises.19
A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to supposedly
prevent the NPA from taking revenge on him. Respondent Calog also approached Rodriguez and Rodel
and asked them to become military assets. Rodel refused and insisted that they take Rodriguez home to
Manila. Again, the soldiers reminded them to refrain from facing the media. The soldiers also told them
that the latter will be taken to the Tuguegarao Airport and guarded until they reached home.20

Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the CHR
office, where Rodriguez was made to sign an affidavit stating that he was neither abducted nor tortured.
Afraid and desperate to return home, he was forced to sign the document. Cruz advised him not to file a
case against his abductors because they had already freed him. The CHR personnel then led him and his
family to the CHR Toyota Tamaraw FX service vehicle. He noticed that a vehicle with soldiers on board
followed them.21

The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon reaching a mall
in Isabela, Rodriguez, his family, Callagan, 1st Lt. Matutina and two other soldiers transferred to an
orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of Nueva Ecija and
Nueva Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan approached
Rodriguez and handed him a cellphone with a SIM card. The latter and his family then left and resumed
their journey back home.22

Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan and two
soldiers went inside the house, and took photographs and a video footage thereof. The soldiers
explained that the photos and videos would serve as evidence of the fact that Rodriguez and his family
were able to arrive home safely. Despite Rodriguezs efforts to confront the soldiers about their acts,
they still continued and only left thirty minutes later.23

On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee on
Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the latter
had been a victim of torture.24

Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed that
several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets and on a
jeepney.25

On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition
for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of
Documents and Personal Properties dated 2 December 2009.26 The petition was filed against former
President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z.
Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog, George Palacpac
(Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following reliefs:

a. The issuance of the writ of amparo ordering respondents to desist from violating Rodriguezs right to
life, liberty and security.

b. The issuance of an order to enjoin respondents from doing harm to or approaching Rodriguez, his
family and his witnesses.

c. Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5th Infantry Division,
Maguing, Gonzaga, Cagayan and another place near where Rodriguez was brought.

d. Ordering respondents to produce documents submitted to them regarding any report on Rodriguez,
including operation reports and provost marshall reports of the 5th Infantry Division, the Special
Operations Group of the Armed Forces of the Philippines (AFP), prior to, on and subsequent to 6
September 2009.1wphi1

e. Ordering records pertinent or in any way connected to Rodriguez, which are in the custody of
respondents, to be expunged, disabused, and forever barred from being used.27

On 15 December 2009, we granted the respective writs after finding that the petition sufficiently alleged
that Rodriguez had been abducted, tortured and later released by members of the 17th Infantry
Battalion of the Philippine Army.28 We likewise ordered respondents therein to file a verified return on
the writs on or before 22 December 2009 and to comment on the petition on or before 4 January
2010.29 Finally, we directed the Court of Appeals to hear the petition on 4 January 2010 and decide on
the case within 10 days after its submission for decision.30

During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit
affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.31

On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed their
Return of the Writ, which was likewise considered as their comment on the petition.32 In their Return,
respondents therein alleged that Rodriguez had surrendered to the military on 28 May 2009 after he
had been put under surveillance and identified as "Ka Pepito" by former rebels.33 According to his
military handlers, Corporal (Cpl.) Rodel

B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in
Cagayan Valley.34 Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he would
help the military in exchange for his protection.35

Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and an
Agents Agreement/Contract, showing his willingness to return to society and become a military asset.36
Since then, he acted as a double agent, returning to the NPA to gather information.37 However, he
feared that his NPA comrades were beginning to suspect him of being an infiltrator.38 Thus, with his
knowledge and consent, the soldiers planned to stage a sham abduction to erase any suspicion about
him being a double agent.39 Hence, the abduction subject of the instant petition was conducted.40

Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January
2010,41 alleging that they had exercised extraordinary diligence in locating Rodriguez, facilitating his
safe turnover to his family and securing their journey back home to Manila. More specifically, they
alleged that, on 16 September 2009, after Wilma sought their assistance in ascertaining the
whereabouts of her son, Cruz made phone calls to the military and law enforcement agencies to
determine his location.42 Cruz was able to speak with Lt. Col. Mina, who confirmed that Rodriguez was
in their custody.43 This information was transmitted to CHR Regional Director Atty. Jimmy P. Baliga. He,
in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry Division.44

When the CHR officers, along with Wilma and Rodel, arrived at the 17th Infantry Battalion at Masin,
Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged that
Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of Noriel
Rodriguez and the latters Contract as Agent.45 The CHR officers observed his casual and cordial
demeanor with the soldiers.46 In any case, Cruz asked him to raise his shirt to see if he had been
subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture. Thereafter,
Rodriguez was released to his family, and they were made to sign a certification to this effect. During the
signing of the document, herein CHR officers did not witness any threat, intimidation or force employed
against Rodriguez or his family. 47

During their journey back to the home of Rodriguez, the CHR officers observed that he was very much at
ease with his military escorts, especially with 1st Lt. Matutina.48 Neither was there any force or
intimidation when the soldiers took pictures of his house, as the taking of photographs was performed
with Wilmas consent.49
During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position
papers and to have the case considered submitted for decision after the filing of these pleadings.50

On 12 April 2010, the Court of Appeals rendered its assailed Decision.51 Subsequently, on 28 April 2010,
respondents therein filed their Motion for Reconsideration.52 Before the Court of Appeals could resolve
this Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari
(G.R. No. 191805), raising the following assignment of errors:

a. The Court of Appeals erred in not granting the Interim Relief for temporary protection order.

b. The Court of Appeals erred in saying: "(H)owever, given the nature of the writ of amparo, which has
the effect of enjoining the commission by respondents of violation to petitioners right to life, liberty
and security, the safety of petitioner is ensured with the issuance of the writ, even in the absence of an
order preventing respondent from approaching petitioner."

c. The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had command
responsibility.53

On the other hand, respondents therein, in their Comment dated 30 July 2010, averred:

a. The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a party-
respondent, as she may not be sued in any case during her tenure of office or actual incumbency.

b. Petitioner had not presented any adequate and competent evidence, much less substantial evidence,
to establish his claim that public respondents had violated, were violating or threatening to violate his
rights to life, liberty and security, as well as his right to privacy. Hence, he was not entitled to the
privilege of the writs of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection
order, production order and temporary protection order) provided under the rule on the writ of amparo
and the rule on the writ of habeas data.54

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt. Matutina, Lt. Col. Mina, Cruz,
Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12 April 2010
Decision of the Court of Appeals.55 They alleged that Rodriguez
Has not presented any adequate and competent evidence, must less substantial evidence, to establish
his claim that petitioners have violated, are violating or threatening with violation his rights to life,
liberty and security, as well as his right to privacy; hence, he is not entitled to the privilege of the writs of
amparo and habeas data and their corresponding interim reliefs (i.e., inspection order, production order
and temporary protection order) provided under the Rule on the Writ of Amparo and the Rule on the
Writ of Habeas Data.56

In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed Decision
and Resolution, the following issues must be resolved:

I. Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of amparo and
habeas data have already been issued in his favor.

II. Whether former President Arroyo should be dropped as a respondent on the basis of the presidential
immunity from suit.

III. Whether the doctrine of command responsibility can be used in amparo and habeas data cases.

IV. Whether the rights to life, liberty and property of Rodriguez were violated or threatened by
respondents in G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to
ensure the protection of the peoples rights to life, liberty and security.57 The rules on these writs were
issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.58 The
Rule on the Writ of Amparo took effect on 24 October 2007,59 and the Rule on the Writ of Habeas Data
on 2 February 2008.60

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it
partakes of a summary proceeding that requires only substantial evidence to make the appropriate
interim and permanent reliefs available to the petitioner.61 It is not an action to determine criminal
guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.62 Rather, it serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances.63 It is preventive in that it breaks the
expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the
subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.64
Meanwhile, the writ of habeas data provides a judicial remedy to protect a persons right to control
information regarding oneself, particularly in instances where such information is being collected
through unlawful means in order to achieve unlawful ends.65 As an independent and summary remedy
to protect the right to privacy especially the right to informational privacy66 the proceedings for the
issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative
culpability. If the allegations in the petition are proven through substantial evidence, then the Court may
(a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the
database or information contains erroneous data or information, order its deletion, destruction or
rectification.67

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order. It
must be underscored that this interim relief is only available before final judgment. Section 14 of the
Rule on the Writ of Amparo clearly provides:

Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or
judge may grant any of the following reliefs:

Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that
the petitioner or the aggrieved party and any member of the immediate family be protected in a
government agency or by an accredited person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and any member of the immediate family, in
accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be
imposed by the court, justice or judge.

(a) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession or control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or
operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of
the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the merit of
the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved
party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date,
time, place and manner of making the inspection and may prescribe other conditions to protect the
constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.

(b) Production Order. The court, justice, or judge, upon verified motion and after due hearing, may
order any person in possession, custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form,
which constitute or contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the
information, in which case the court, justice or judge may conduct a hearing in chambers to determine
the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the
parties.

(c) Witness Protection Order. The court, justice or judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to accredited
persons or private institutions capable of keeping and securing their safety. (Emphasis supplied)

We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist the court before it
arrives at a judicious determination of the amparo petition." Being interim reliefs, they can only be
granted before a final adjudication of the case is made. In any case, it must be underscored that the
privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party.
Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue a temporary
protection order independently of the former. The order restricting respondents from going near
Rodriguez is subsumed under the privilege of the writ.

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal liability in
amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or
accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v. Tagitis:69

It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have
been established by substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the
directive to file the appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed
to those who exhibited involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed
to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.
In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and security are restored.70
(Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision71 found respondents in G.R. No. 191805
with the exception of Calog, Palacpac or Harry to be accountable for the violations of Rodriguezs right
to life, liberty and security committed by the 17th Infantry Battalion, 5th Infantry Division of the
Philippine Army. 72 The Court of Appeals dismissed the petition with respect to former President Arroyo
on account of her presidential immunity from suit. Rodriguez contends, though, that she should remain
a respondent in this case to enable the courts to determine whether she is responsible or accountable
therefor. In this regard, it must be clarified that the Court of Appeals rationale for dropping her from
the list of respondents no longer stands since her presidential immunity is limited only to her
incumbency.

In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does not enjoy immunity
from suit, even for acts committed during the latters tenure. We emphasize our ruling therein that
courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes
the search for truth or impairs the vindication of a right, to wit:

We reject [Estradas] argument that he cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment
Court is Functus Officio." Since the Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission
has nothing to commend itself for it will place him in a better situation than a non-sitting President who
has not been subjected to impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the resignation of the President, the proper
criminal and civil cases may already be filed against him, viz:

"x x x xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation
would render the case moot and academic. However, as the provision says, the criminal and civil aspects
of it may continue in the ordinary courts."

This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. xxx
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner
cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him
with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation
from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts
of the State and the officer who acts illegally is not acting as such but stands in the same footing as any
other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed
to produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct justice and other
offenses which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others,
that the President was not subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it
cannot prevail over the fundamental demands of due process of law in the fair administration of
criminal justice." In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the
immunity of the President from civil damages covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US
President's immunity from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.74 (Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the presidential immunity from
suit exists only in concurrence with the presidents incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His
arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In
our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends
and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life
to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim
executive immunity for his alleged criminal acts committed while a sitting President. Petitioner's
rehashed arguments including their thinly disguised new spins are based on the rejected contention that
he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of
office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is
now a new de jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit
during his term of office. He buttresses his position with the deliberations of the Constitutional
Commission, viz:

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the president shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence that during his
tenure he is immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973 Constitution was to
make that explicit and to add other things.

Mr. Suarez:
On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification."

Petitioner, however, fails to distinguish between term and tenure. The term means the time during
which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during which the incumbent
actually holds office. The tenure may be shorter than the term for reasons within or beyond the power
of the incumbent. From the deliberations, 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.76 (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot use
the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether,
within the context of amparo proceedings, she was responsible or accountable for the abduction of
Rodriguez.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the
doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,77 command
responsibility pertains to the "responsibility of commanders for crimes committed by subordinate
members of the armed forces or other persons subject to their control in international wars or domestic
conflict."78 Although originally used for ascertaining criminal complicity, the command responsibility
doctrine has also found application in civil cases for human rights abuses.79 In the United States, for
example, command responsibility was used in Ford v. Garcia and Romagoza v. Garcia civil actions filed
under the Alien Tort Claims Act and the Torture Victim Protection Act.80 This development in the use of
command responsibility in civil proceedings shows that the application of this doctrine has been liberally
extended even to cases not criminal in nature. Thus, it is our view that command responsibility may
likewise find application in proceedings seeking the privilege of the writ of amparo. As we held in
Rubrico:

It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable
to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the incorporation clause of the
Constitution.
xxx xxx xxx

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be
only to determine the author who, at the first instance, is accountable for, and has the duty to address,
the disappearance and harassments complained of, so as to enable the Court to devise remedial
measures that may be appropriate under the premises to protect rights covered by the writ of amparo.
As intimated earlier, however, the determination should not be pursued to fix criminal liability on
respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.81 (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether
respondents are accountable for and have the duty to address the abduction of Rodriguez in order to
enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court
from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility
and accountability in extrajudicial killings and enforced disappearances. In this regard, the Separate
Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or
administrative liability should not abate the applicability of the doctrine of command responsibility.
Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper context, they do not
preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary
signification as a guarantee of protection of ones rights by the government. It further stated that
protection includes conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances, or threats thereof, and/or
their families, and bringing offenders to the bar of justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the
doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in
their duties when the government completely failed to exercise the extraordinary diligence that the
Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who,
under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in
the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis.
Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine
to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity." Obviously, it should, as it did, only
treat of superior responsibility as a ground for criminal responsibility for the crimes
covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html - fnt20cm Such
limited treatment, however, is merely in keeping with the statutes purpose and not intended to rule
out the application of the doctrine of command responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers
from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the
doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical
conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly
wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced
disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents
Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command
responsibility doctrine, the ponencias hesitant application of the doctrine itself is replete with
implications abhorrent to the rationale behind the Rule on the Writ of Amparo.82 (Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,83 likewise
penned by Justice Carpio-Morales, wherein this Court ruled:

Rubrico categorically denies the application of command responsibility in amparo cases to determine
criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases are
concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo
cases to instances of determining the responsible or accountable individuals or entities that are duty-
bound to abate any transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be
only to determine the author who, at the first instance, is accountable for, and has the duty to address,
the disappearance and harassments complained of, so as to enable the Court to devise remedial
measures that may be appropriate under the premises to protect rights covered by the writ of amparo.
As intimated earlier, however, the determination should not be pursued to fix criminal liability on
respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.

In other words, command responsibility may be loosely applied in amparo cases in order to identify
those accountable individuals that have the power to effectively implement whatever processes an
amparo court would issue. In such application, the amparo court does not impute criminal responsibility
but merely pinpoint the superiors it considers to be in the best position to protect the rights of the
aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary
determination of criminal liability which, of course, is still subject to further investigation by the
appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have
been established by substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, and (b) accountability, or the measure of remedies that should be
addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the
level of their complicity to the level of responsibility defined above; or (ii) who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those
who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance. Thus, although there is no determination of criminal, civil or administrative
liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain
responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo proceedings, it
must now be resolved whether the president, as commander-in-chief of the military, can be held
responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the
affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must
obtain:

a. the existence of a superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate;
b. the superior knew or had reason to know that the crime was about to be or had been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.84

The president, being the commander-in-chief of all armed forces,85 necessarily possesses control over
the military that qualifies him as a superior within the purview of the command responsibility doctrine.
86

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict
standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
circumstantial evidence.87 In the Philippines, a more liberal view is adopted and superiors may be
charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No.
226, otherwise known as the Institutionalization of the Doctrine of Command Responsibility in all
Government Offices, particularly at all Levels of Command in the Philippine National Police and other
Law Enforcement Agencies (E.O. 226).88 Under E.O. 226, a government official may be held liable for
neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or
offense shall be committed, is being committed, or has been committed by his subordinates, or by
others within his area of responsibility and, despite such knowledge, he did not take preventive or
corrective action either before, during, or immediately after its commission.89 Knowledge of the
commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the
government officials area of jurisdiction; (b) the acts have been repeatedly or regularly committed
within his area of responsibility; or (c) members of his immediate staff or office personnel are
involved.90

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command, control
and discipline the military.91

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through substantial evidence
that former President Arroyo is responsible or accountable for his abduction. We rule in the negative.
Rodriguez anchors his argument on a general allegation that on the basis of the "Melo Commission" and
the "Alston Report," respondents in G.R. No. 191805 already had knowledge of and information on, and
should have known that a climate of enforced disappearances had been perpetrated on members of the
NPA.92 Without even attaching, or at the very least, quoting these reports, Rodriguez contends that the
Melo Report points to rogue military men as the perpetrators. While the Alston Report states that there
is a policy allowing enforced disappearances and pins the blame on the President, we do not
automatically impute responsibility to former President Arroyo for each and every count of forcible
disappearance.93 Aside from Rodriguezs general averments, there is no piece of evidence that could
establish her responsibility or accountability for his abduction. Neither was there even a clear attempt to
show that she should have known about the violation of his right to life, liberty or security, or that she
had failed to investigate, punish or prevent it.

Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Courts ruling in Razon,94
to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality,
and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic
test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic
minimum test.95 (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the
same being supported by substantial evidence. A careful examination of the records of this case reveals
that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility and
accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and security.

a. The totality of evidence proved by substantial evidence the responsibility or accountability of

respondents for the violation of or threat to Rodriguezs right to life, liberty and security.

After a careful examination of the records of these cases, we are convinced that the Court of Appeals
correctly found sufficient evidence proving that the soldiers of the 17th Infantry Battalion, 5th Infantry
Division of the military abducted Rodriguez on 6 September 2009, and detained and tortured him until
17 September 2009.
Rodriguezs Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward
account of his horrific ordeal with the military, detailing the manner in which he was captured and
maltreated on account of his suspected membership in the NPA.96 His narration of his suffering
included an exhaustive description of his physical surroundings, personal circumstances and perceived
observations. He likewise positively identified respondents 1st Lt. Matutina and Lt. Col. Mina to be
present during his abduction, detention and torture,97 and respondents Cruz, Pasicolan and Callagan as
the CHR representatives who appeared during his release.98

More particularly, the fact of Rodriguezs abduction was corroborated by Carlos in his Sinumpaang
Salaysay dated 16 September 2009,99 wherein he recounted in detail the circumstances surrounding
the victims capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate
the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17th Infantry Battalion,
5th Infantry Division. According to the Certification dated 12 October 2009 executed by Dr. Ramil,100
she examined Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009
and arrived at the following findings:

FACE

- 10cm healed scar face right side

- 2cm healed scar right eyebrow (lateral area)

- 2cm healed scar right eye brow (median area)

- 4cm x 2cm hematoma anterior chest at the sternal area right side

- 3cm x 2cm hematoma sternal area left side

- 6cm x 1cm hematoma from epigastric area to ant. chest left side

- 6cm x 1cm hematoma from epigastric area to ant. chest right side
- Multiple healed rashes (brownish discoloration) both forearm

- Multiple healed rashes (brownish discoloration)

- both leg arm

- hip area/lumbar area101

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results
of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas
thus issued a Medical Report dated 23 September 2009,102 explicitly stating that Rodriguez had been
tortured during his detention by the military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and ill-
treatment done to him. The multiple circular brown to dark brown spots found on both legs and arms
were due to the insect bites that he sustained when he was forced to join twice in the military
operations. The abrasions could also be due to the conditions related during military operations. The
multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his left
ear. The areas of tenderness he felt during the physical examination were due to the overwhelming
punching and kicking on his body. The occasional difficulty of sleeping is a symptom experience (sic) by
the subject as a result of the psychological trauma he encountered during his detention.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the torture and
ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by the
subject, of which the age is compatible with the alleged date of infliction (sic).103 (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding
that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the
soldiers of the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. Further, the kind of
injuries he sustained showed that he could not have sustained them from merely falling, thus making
respondents claim highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of
Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their
argument that he was neither abducted nor detained. Rather, they claimed that he was a double agent,
whose relationship with the military was at all times congenial. This contention cannot be sustained, as
it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have
unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he
vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang Salaysay
dated 4 December 2009104 Wilma executed, she made the following averments:

18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod
at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar
na iyon;

xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa
kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;

24. Na hindi ako pumayag na maiwan ang aking anak;

xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming buong
pamilya, lalo na kay Noriel; xxx105
Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December
2009:106

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang ipinayat at
nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at
masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako dito, papatayin nila ako."

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid
sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx107

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory,
contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion
from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to return to his
life in the NPA to become a double-agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military
handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of
the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a
double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information
regarding the movement directly from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he would agree to become an
undercover agent and work alongside soldiers in the mountains or the wilderness he dreads to
locate the hideout of his alleged NPA comrades.108 (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction, detention and
torture of Rodriguez, respondents, specifically 1st Lt. Matutina, had violated and threatened the
formers right to security when they made a visual recording of his house, as well as the photos of his
relatives, to wit:
In the videos taken by the soldiers one of whom was respondent Matutina in the house of petitioner
on September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioners
relatives hung on the wall of the house, as well as videos of the innermost part of the house. This Court
notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make proofs of the safe
arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in the minds of
petitioner and his family by showing them that the sanctity of their home, from then on, will not be free
from the watchful eyes of the military, permanently captured through the medium of a seemingly
innocuous cellhpone video camera. The Court cannot and will not condone such act, as it intrudes
into the very core of petitioners right to security guaranteed by the fundamental law.109 (Emphasis
supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory
defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had been
abducted, detained and tortured by soldiers belonging to the 17th Infantry Battalion, 5th Infantry
Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no
substantial evidence to show that they violated, or threatened with violation, Rodriguezs right to life,
liberty and security. Despite the dearth of evidence to show the CHR officers responsibility or
accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize
torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human rights
and investigate violations thereof,110 should ensure that its officers are well-equipped to respond
effectively to and address human rights violations. The actuations of respondents unmistakably showed
their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.

b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to
Rodriguezs rights to life, liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty
and security may be caused by either an act or an omission of a public official.111 Moreover, in the
context of amparo proceedings, responsibility may refer to the participation of the respondents, by
action or omission, in enforced disappearance.112 Accountability, on the other hand, may attach to
respondents who are imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance.113
In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo114 that the right to
security of a person includes the positive obligation of the government to ensure the observance of the
duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the government. In
the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty
under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to
security of person in this third sense is a corollary of the policy that the State "guarantees full respect for
human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-
American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez
Case, viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim
or his family or upon their offer of proof, without an effective search for the truth by the government.

xxx xxx xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as
prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to
afford protection of the right to liberty. The ECHR interpreted the "right to security of person" under
Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of
persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by state authorities and had
not been seen since. The family's requests for information and investigation regarding his whereabouts
proved futile. The claimant suggested that this was a violation of her son's right to security of person.
The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and
procedural rules of national law but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having assumed control over that individual it is
incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be
seen as requiring the authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an arguable claim that a person has
been taken into custody and has not been seen since.115 (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable
for the violation of Rodriguezs right to life, liberty and security on account of their abject failure to
conduct a fair and effective official investigation of his ordeal in the hands of the military. Respondents
Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only
conducted a perfunctory investigation, exerting no efforts to take Ramirezs account of the events into
consideration. Rather, these respondents solely relied on the reports and narration of the military. The
ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable,
for while they were charged with the investigation of the subject incident, the investigation they
conducted and/or relied on is superficial and one-sided. The records disclose that the military, in
investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez
@Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501st Infantry Brigade, 5th
Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the
military. No efforts were undertaken to solicit petitioners version of the subject incident and no
witnesses were questioned regarding the alleged abduction of petitioner.

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No.
6975, otherwise known as the "PNP Law," specifies the PNP as the governmental office with the
mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution." In this case, PDG Verzosa failed to order the police to conduct
the necessary investigation to unmask the mystery surrounding petitioners abduction and
disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has no
cause of action against him. Palpable, however, is the lack of any effort on the part of PDG Verzosa to
effectively and aggressively investigate the violations of petitioners right to life, liberty and security by
members of the 17th Infantry Battalion, 17th Infantry Division, Philippine Army.116 (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his
right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or
accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac.
Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez was
perpetrated, while P/SSupt. Santos had already been reassigned and transferred to the National Capital
Regional Police Office six months before the subject incident occurred. Meanwhile, no sufficient
allegations were maintained against respondents Calog and Palacpac.
From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence
that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt.
Matutina, and Lt. Col. Mina were responsible and accountable for the violation of Rodriguezs rights to
life, liberty and security on the basis of (a) his abduction, detention and torture from 6 September to 17
September 2009, and (b) the lack of any fair and effective official investigation as to his allegations.
Thus, the privilege of the writs of amparo and habeas data must be granted in his favor. As a result,
there is no longer any need to issue a temporary protection order, as the privilege of these writs already
has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to life, liberty and
security.

It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list
of respondents in G.R. No. 191805, and (b) allowing the application of the command responsibility
doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through substantial
evidence that former President Arroyo was responsible or accountable for the violation of his rights to
life, liberty and property. He likewise failed to prove through substantial evidence the accountability or
responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the
Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH
MODIFICATION.

The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt.
Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin
Pasicolan and Vicent Callagan for lack of merit.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to
take the appropriate action with respect to any possible liability or liabilities, within their respective
legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa,
Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and
Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of
their action within a period of six months from receipt of this Decision.

In the event that herein respondents no longer occupy their respective posts, the directives mandated in
this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the
relevant positions. Failure to comply with the foregoing shall constitute contempt of court.

SO ORDERED.
#7 IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND WRIT OF HABEAS DATA INFAVOR
OF NORIEL H. RODRIGUEZGR NO. 191805NOVEMBER 15, 2011Facts:

Petitioner Noriel Rodriguez is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), apeasant
organization affiliated with Kilusang Magbubukid ng Pilipinas (KMP). He claims that the militarytagged
KMP as an enemy of the State under the Oplan Bantay Laya, making its members targets of extrajudicial
killings and enforced disappearances.Rodriguez was abducted by military men and was tortured
repeatedly when he refused toconfess to his membership in the NPA. When released, he filed a Petition
for the Writ of Amparo andand Petition for the Writ of Habeas Data with Prayers for Protection Orders,
Inspection of Place, andProduction of Documents and Personal Properties. The petition was filed against
former Pres. Arroyo, etal. The writs were granted but the CA dropped Pres Arroyo as party-respondent,
as she may not be suedin any case during her tenure of office or actual incumbency.

Issue:

1.

Whether former Pres GMA should be dropped as respondent on the basis of presidentialimmunity from
suit2.

Whether the doctrine of command responsibility can be used in amparo and habeas data cases.3.

Whether the president, as commander-in-chief of the military, can be held responsible oraccountable
for extrajudicial killings and enforced disappearances.4.

Whether Rodriguez has proven through substantial evidence that former President Arroyo isresponsible
or accountable for his abduction.

Held:

1.

No. It bears stressing that since there is no determination of administrative, civil or criminalliability in
amparo and habeas data proceedings, courts can only go as far as ascertainingresponsibility or
accountability for the enforced disappearance or extrajudicial killing.As was held in the case of Estrada v
Desierto, a non-sitting President does not enjoy immunity

from suit, even for acts committed during the latters tenure; that courts should look with disfavor upon

the presidential privilege of immunity, especially when it impedes the search for truth or impairs
thevindication of a right. The deliberations of the Constitutional Commission also reveal that the intent
of the framers is clear that presidential immunity from suit is concurrent only with his tenure and not
histerm. (The term means the time during which the officer may claim to hold the office as of right,
andfixes the interval after which the several incumbents shall succeed one another. The tenure
representsthe term during which the incumbent actually holds office. The tenure may be shorter than
the term forreasons within or beyond the power of the incumbent.) Therefore, former Pres. GMA
cannot use suchimmunity to shield herself from judicial scrutiny that would assess whether, within the
contextof amparo proceedings, she was responsible or accountable for the abduction of Rodriguez.2.

Yes.

As we explained in Rubrico v. Arroyo, command responsibility pertains to the"responsibility of

commanders for crimes committed by subordinate members of the armedforces or other persons
subject to their control in international wars or domestic
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 183533 September 25, 2012

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN
FAVOR OF FRANCIS SAEZ, Petitioner,

vs.

GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND
MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO,
CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA
YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A
CERTAIN JOEL, RODERICK CLANZA and JEFFREY GOMEZ, Respondents.

For action by the Court is the Motion for Reconsideration1 dated September 26, 2010 filed by petitioner
Francis Saez of our Resolution2 dated August 31, 2010 denying the Petition for Review3 he filed on July
21, 2008.

The Office of the Solicitor General (OSG) filed its Comment4 thereon stating that it does not find cogent
grounds to warrant setting aside our decision.

Antecedent Facts

On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs
of amparo and habeas data with prayers for temporary protection order, inspection of place and
production of documents.5 In the petition, he expressed his fear of being abducted and killed; hence, he
sought that he be placed in a sanctuary appointed by the Court. He likewise prayed for the military to
cease from further conducting surveillance and monitoring of his activities and for his name to be
excluded from the order of battle and other government records connecting him to the Communist
Party of the Philippines (CPP).
Without necessarily giving due course to the petition, the Court issued the writ of amparo commanding
the respondents to make a verified return, and referred the case to the Court of Appeals (CA) for
hearing and decision.The case before the CA was docketed as CA-G.R. SP No. 00024 WOA.

In the Return of the Writ,6 the respondents denied the assignment in the units of Captains Lawrence
Banaag and Rommel Gutierrez and Corporal Ariel Fontanilla. The respondents also alleged that the
names and descriptions of "Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny," and
"Joel" were insufficient to properly identify some of the persons sought to be included as among the
respondents in the petition.

On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon), Capt. Jacob Thaddeus
Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico Duquil submitted
their affidavits.

The CA conducted hearings with an intent to clarify what actually transpired and to determine specific
acts which threatened the petitioners right to life, liberty or security.

During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that he was always
being followed by a certain "Joel," a former colleague at Bayan Muna. "Joel" pretended peddling
pandesal in the vicinity of the petitioners store. Three days before the petitioner was apprehended,
"Joel" approached and informed him of his marital status and current job as a baker in Calapan, Mindoro
Oriental. "Joel" inquired if the petitioner was still involved with ANAKPAWIS. When asked by the CA
justices during the hearing if the petitioner had gone home to Calapan after having filed the petition, he
answered in the negative explaining that he was afraid of Pvt. Osio who was always at the pier.

CA-G.R. SP No. 00024 WOA

On July 9, 2008, the CA rendered its Decision,7 denying on formal and substantial grounds the reliefs
prayed for in the petition and dropping former President Gloria Macapagal Arroyo as a respondent. The
CA ratiocinated:

There was no attempt at all to clarify how petitioner came to know about Zaldy Osios presence at their
pier if the former had not gone home since the petition was filed and what Zaldy Osio was doing there
to constitute violation or threat to violate petitioners right to life, liberty or security. This Court cannot
just grant the privilege of the writs without substantial evidence to establish petitioners entitlement
thereto. This Court cannot grant the privilege of the writs applied for on mere speculation or conjecture.
This Court is convinced that the Supreme Court did not intend it to be so when the rules on the writs of
Amparo and Habeas Data were adopted. It is the impression of this Court that the privilege of the writs
herein prayed for should be considered as extraordinary remedies available to address the specific
situations enumerated in the rules and no other.

xxxx

Not only did the petition and the supporting affidavit x x x fail to allege how the supposed threat or
violation of petitioners [right to] life, liberty and security is committed. Neither is there any narration of
any circumstances attendant to said supposed violation or threat to violatepetitioners right to life,
liberty or security to warrant entitlement to the privilege of the writs prayed for.

xxxx

A reading of the petition will show that the allegations therein do not comply with the aforestated
requirements of Section 6 Rule on the Writ of Habeas Data of the pertinent rule. The petition is bereft of
any allegation stating with specific definiteness as to how petitioners right to privacy was violated or
threatened to be violated. He did not include any allegation as to what recourses he availed of to obtain
the alleged documents from respondents. Neither did petitioner allege what specific documents he
prays for and from whom or [sic] from what particular office of the government he prays to obtain
them. The petition prays "to order respondents to produce any documents submitted to any of them in
the matter of any report on the case of FRANCIS SAEZ, including all military intelligence reports."

xxxx

Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-SC and Section 16,
A.M. No. 08-1-16-SC) provide that the parties shall establish their claims by substantial evidence. Not
only was petitioner unable to establish his entitlement to the privilege of the writs applied for, the
exigency thereof was negated by his own admission that nothing happened between him and Joel after
July 21, 2007. The filing of the petition appears to have been precipitated by his fear that something
might happen to him, not because of any apparent violation or visible threat to violate his right to life,
liberty or security. Petitioner was, in fact, unable to establish likewise who among the respondents
committed specific acts defined under the rules on both writs to constitute violation or threat to violate
petitioners rights to life, liberty or security or his right to privacy thereof.

xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396, May 3, 2006, 489
SCRA 160, 224) is aptly instructive:

"Settled is the doctrine that the President, during his tenure of office or actual incumbency, 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. x x x."

xxxx

IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on Notarial Practice.8

On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with the following
issues submitted for resolution:

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING THE PETITION AND
DROPPING GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.

WHETHER OR NOT THE NOTARIAL OFFICERS OMISSION OF REQUIRING FROM THE PETITIONER
IDENTIFICATION CARDS RELATIVE TO THE LATTERS EXECUTION OF THE VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.

WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED TO CONCLUDE
FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY BEING PLACED IN THE ORDER OF
BATTLE LIST, THREATS AND VIOLATIONS TO THE LATTERS LIFE, LIBERTY AND SECURITY WERE ACTUALLY
COMMITTED BY THE RESPONDENTS.9

Courts Resolution dated August 31, 2010

On August 31, 2010, the Court issued the Resolution10 denying the petition for review for the following
reasons, viz:
A careful perusal of the subject petition shows that the CA correctly found that the petition was bereft
of any allegation as to what particular acts or omission of respondents violated or threatened
petitioners right to life, liberty and security. His claim that he was incommunicado lacks credibility as he
was given a cellular phone and allowed to go back to Oriental Mindoro. The CA also correctly held that
petitioner failed to present substantial evidence that his right to life, liberty and security were violated,
or how his right to privacy was threatened by respondents. He did not specify the particular documents
to be secured, their location or what particular government office had custody thereof, and who has
possession or control of the same. He merely prayed that the respondents be ordered "to produce any
documents submitted to any of them in the matter of any report on the case of FRANCIS SAEZ, including
all military intelligence reports."

Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he had specifically
detailed the violation of his right to privacy as he was placed in the Order of Battle and promised to have
his record cleared if he would cooperate and become a military asset. However, despite questions
propounded by the CA Associate Justices during the hearing, he still failed to enlighten the appellate
court as to what actually transpired to enable said court to determine whether his right to life, liberty or
security had actually been violated or threatened. Records bear out the unsubstantiated claims of
petitioner which justified the appellate courts dismissal of the petition.

As to petitioners argument that the CA erred in deleting the President as party-respondent, we find the
same also to be without merit. The Court has already made it clear in David v. Macapagal-Arroyo that
the President, during his or her tenure of office or actual incumbency, 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 the President can be dragged into court
litigations while serving as such. Furthermore, it is important that the President be freed from any form
of harassment, hindrance or distraction to enable the President to fully attend to the performance of
official duties and functions.11 (Citation omitted)

Hence, the petitioner filed the instant motion for reconsideration.12

Petitioners Arguments

Contrary to the CAs findings, it had been shown by substantial evidence and even by the respondents
own admissions that the petitioners life, liberty and security were threatened. Military personnel,
whom the petitioner had named and described, knew where to get him and they can do so with ease.
He also became a military asset, but under duress, as the respondents had documents allegedly linking
him to the CPP and including him in the order of battle. The petitioner claims that the foregoing
circumstances were not denied by the respondents.
The petitioner likewise challenges the CAs finding that he was not rendered incommunicado as he was
even provided with a cellular phone. The petitioner argues that the phone was only given to him for the
purpose of communicating with the respondents matters relative to his infiltration activities of target
legal organizations.

The petitioner cites Secretary of National Defense v. Manalo,13 which pronounced that "in the amparo
context, it is more correct to say that the right to security is actually the freedom from threat".14
According to the petitioner, his freedom from fear was undoubtedly violated, hence, to him pertains a
cause of action. Anent the quantum of proof required in a petition for the issuance of the writ of
amparo, mere substantial evidence is sufficient. The petition "is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence,
or administrative responsibility requiring substantial evidence that will require full and exhaustive
proceedings".15

Sadly, in the petitioners case, the court not only demanded a greater quantum of proof than what the
rules require, but it also accorded special preference for the respondents evidence.

The petitioner also cites a speech delivered in Siliman University by former Chief Justice Reynato Puno
who expressed that "the remedy of habeas data can be used by any citizen against any governmental
agency or register to find out what information is held about his or her person." The person can likewise
"request the rectification or even the destruction of erroneous data gathered and kept against him or
her." In the petitioners case, he specifically sought the production of the order of battle, which allegedly
included his name, and other records which supposedly contain erroneous data relative to his
involvement with the CPP.

OSGs Comment

In the respondents comment16 filed by the OSG, it is generally claimed that the petitioner advances no
cogent grounds to justify the reversal of the Courts Resolution dated August 31, 2010.

The Courts Disquisition

While the issuance of the writs sought by the petitioner cannot be granted, the Court nevertheless finds
ample grounds to modify the Resolution dated August 31, 2010.
The petition conforms to the

requirements of the Rules on the

Writs of Amparo and Habeas Data

Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 618 of A.M. 08-1-16-SC
(Rule on the Writ of Habeas Data) provide for what the said petitions should contain.

In the present case, the Court notes that the petition for the issuance of the privilege of the writs of
amparo and habeas data is sufficient as to its contents. The petitioner made specific allegations relative
to his personal circumstances and those of the respondents. The petitioner likewise indicated particular
acts, which are allegedly violative of his rights and the participation of some of the respondents in their
commission. As to the pre-requisite conduct and result of an investigation prior to the filing of the
petition, it was explained that the petitioner expected no relief from the military, which he perceived as
his oppressors, hence, his request for assistance from a human rights organization, then a direct resort
to the court. Anent the documents sought to be the subject of the writ of habeas data prayed for, the
Court finds the requirement of specificity to have been satisfied. The documents subject of the petition
include the order of battle, those linking the petitioner to the CPP and those he signed involuntarily, and
military intelligence reports making references to him. Although the exact locations and the custodians
of the documents were not identified, this does not render the petition insufficient. Section 6(d) of the
Rule on the Writ of Habeas Data is clear that the requirement of specificity arises only when the exact
locations and identities of the custodians are known. The Amparo Rule was not promulgated with the
intent to make it a token gesture of concern for constitutional rights.19 Thus, despite the lack of certain
contents, which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as their
absence under exceptional circumstances can be reasonably justified, a petition should not be
susceptible to outright dismissal.

From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the
writs of amparo and habeas data filed conform to the rules. However, they are mere allegations, which
the Court cannot accept "hook, line and sinker", so to speak, and whether substantial evidence exist to
warrant the granting of the petition is a different matter altogether.

No substantial evidence exists to

prove the petitioners claims

The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing
of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the admissible evidence adduced.20

With the foregoing in mind, the Court still finds that the CA did not commit a reversible error in
declaring that no substantial evidence exist to compel the grant of the reliefs prayed for by the
petitioner. The Court took a second look on the evidence on record and finds no reason to reconsider
the denial of the issuance of the writs prayed for.

In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner if the latter
was still involved with ANAKPAWIS. By itself, such claim cannot establish with certainty that the
petitioner was being monitored. The encounter happened once and the petitioner, in his pleadings,
nowhere stated that subsequent to the time he was asked about his involvement with ANAKPAWIS, he
still noticed "Joel" conducting surveillance operations on him. He alleged that he was brought to the
camp of the 204th Infantry Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m. The
petitioner and the respondents have conflicting claims about what transpired thereafter. The petitioner
insisted that he was brought against his will and was asked to stay by the respondents in places under
the latters control. The respondents, on the other hand, averred that it was the petitioner who
voluntarily offered his service to be a military asset, but was rejected as the former still doubted his
motives and affiliations.

Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that questions of fact
and law can be raised before the Court in a petition for review on certiorari under Rule 45. As a rule
then, the Court is not bound by the factual findings made by the appellate court which rendered the
judgment in a petition for the issuance of the writs of amparo and habeas data. Be that as it may, in the
instant case, the Court agrees with the CA that the petitioner failed to discharge the burden of proof
imposed upon him by the rules to establish his claims. It cannot be overemphasized that Section 1 of
both the Rules on the Writ of Amparo and Habeas Data expressly include in their coverage even
threatened violations against a persons right to life, liberty or security. Further, threat and intimidation
that vitiate the free will although not involving invasion of bodily integrity nevertheless constitute a
violation of the right to security in the sense of "freedom from threat".21

It must be stressed, however, that such "threat" must find rational basis on the surrounding
circumstances of the case. In this case, the petition was mainly anchored on the alleged threats against
his life, liberty and security by reason of his inclusion in the militarys order of battle, the surveillance
and monitoring activities made on him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the mantle of protection of the writs of
amparo and habeas data, in the petitioners case, the restraints and threats allegedly made allegations
lack corroborations, are not supported by independent and credible evidence, and thus stand on
nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the writs.
Unlike, however, the unique nature of cases involving enforced disappearances or extra-judicial killings
that calls for flexibility in considering the gamut of evidence presented by the parties, this case sets a
different scenario and a significant portion of the petitioners testimony could have been easily
corroborated. In his Sinumpaang Salaysay22 dated March 5, 2008 and the Fact Sheet dated December 9,
200723 executed before the Alliance for the Advancement of Peoples Rights-Southern Tagalog
(KARAPATAN-ST), the petitioner stated that when he was invited and interrogated at the military camp
in Naujan, Oriental Mindoro, he brought with him his uncle Norberto Roxas, Barangay Captain Mario
Ilagan and two of his bodyguards, and Edwardo Estabillo five witnesses who can attest and easily
corroborate his statement but curiously, the petitioner did not present any piece of evidence, whether
documentary or testimonial, to buttress such claim nor did he give any reason for their non-
presentation.This could have made a difference in light of the denials made by the respondents as
regards the petitioners claims.

The existence of an order of battle and inclusion of the petitioners name in it is another allegation by
the petitioner that does not find support on the evidence adduced. The Court notes that such allegation
was categorically denied by respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit dated March 31,
2008, stated that he "does not have knowledge about any Armed Forces of the Philippines (AFP) order
of battle which allegedly lists the petitioner as a member of the CPP."24 This was also denied by Pvt.
Osio, who the petitioner identified as the one who told him that he was included in the order of
battle.25 The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also conducted an
investigation pursuant to the directive of AFP Chief of Staff Gen. Esperon,26 and it was shown that the
persons identified by the petitioners who allegedly committed the acts complained of were not
connected or assigned to the 2nd Infantry Division.27

Moreover, the evidence showed that the petitioners mobility was never curtailed. From the time he
was allegedly brought to Batangas in August of 2007 until the time he sought the assistance of
KARAPATAN-ST, there was no restraint upon the petitioner to go home, as in fact, he went home to
Mindoro on several instances. And while he may have been wary of Pvt. Osios presence at the pier,
there was no claim by the petitioner that he was threatened or prevented by Pvt. Osio from boarding
any vehicle that may transport him back home. The petitioner also admitted that he had a mobile
phone; hence, he had unhampered access to communication and can readily seek assistance from non-
governmental organizations and even government agencies.

The respondents also belied the petitioners claim that they forced him to become a military informant
and instead, alleged that it was the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that he actually knew the petitioner way
back in 1998 when they were still students. He also stated that when he saw the petitioner again in
2007, the latter manifested his intention to become a military informant in exchange for financial and
other forms of assistance.

The petitioner also harps on the alleged "monitoring" activities being conducted by a certain "Joel", e.g.,
the latters alleged act of following him, pretending to peddle pandesal and asking him about his
personal circumstances. Such allegation by the petitioner, however, is, at best, a conclusion on his part,
a mere impression that the petitioner had, based on his personal assessment of the circumstances. The
petitioner even admitted in his testimony before the CA that when he had a conversation with "Joel"
sometime in July 2007, the latter merely asked him whether he was still connected with ANAKPAWIS,
but he was not threatened "with anything" and no other incident occurred between them since then.29
There is clearly nothing on record which shows that "Joel" committed overt acts that will unequivocally
lead to the conclusion arrived at by the petitioner, especially since the alleged acts committed by "Joel"
are susceptible of different interpretations.

Given that the totality of the evidence presented by the petitioner failed to support his claims, the
reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of proving his case. "Indeed, even the
liberal standard of substantial evidence demands some adequate evidence."30

The President cannot be

automatically dropped as a

respondent pursuant to the doctrine

of command responsibility

In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo proceedings, it
must now be resolved whether the president, as commander-in-chief of the military, can be held
responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the
affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must
obtain:
a. the existence of a superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses control over the
military that qualifies him as a superior within the purview of the command responsibility doctrine.

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict
standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged
with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226,
otherwise known as the Institutionalization of the Doctrine of Command Responsibility in all
Government Offices, particularly at all Levels of Command in the

Philippine National Police and other Law Enforcement Agencies (E.O. 226). Under E.O. 226, a
government official may be held liable for neglect of duty under the doctrine of command responsibility
if he has knowledge that a crime or offense shall be committed, is being committed, or has been
committed by his subordinates, or by others within his area of responsibility and, despite such
knowledge, he did not take preventive or corrective action either before, during, or immediately after its
commission. Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the
acts are widespread within the government officials area of jurisdiction; (b) the acts have been
repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate
staff or office personnel are involved.

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command, control
and discipline the military. (Citations omitted)

Pursuant to the doctrine of command responsibility, the President, as the Commander-in-Chief of the
AFP, can be held liable for affront against the petitioners rights to life, liberty and security as long as
substantial evidence exist to show that he or she had exhibited involvement in or can be imputed with
knowledge of the violations, or had failed to exercise necessary and reasonable diligence in conducting
the necessary investigations required under the rules.1wphi1

The Court also stresses that rule that the presidential immunity from suit exists only in concurrence with
the presidents incumbency.32

Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for
acts committed during his or her tenure.33 Courts look with disfavor upon the presidential privilege of
immunity, especially when it impedes the search for truth or impairs the vindication of a right.34

The petitioner, however, is not exempted from the burden of proving by substantial evidence his
allegations against the President to make the latter liable for either acts or omissions violative of rights
against life, liberty and security. In the instant case, the petitioner merely included the Presidents name
as a party respondent without any attempt at all to show the latters actual involvement in, or
knowledge of the alleged violations. Further, prior to the filing of the petition, there was no request or
demand for any investigation that was brought to the Presidents attention. Thus, while the President
cannot be completely dropped as a respondent in a petition for the privilege of the writs of amparo and
habeas data merely on the basis of the presidential immunity from suit, the petitioner in this case failed
to establish accountability of the President, as commander-in-chief, under the doctrine of command
responsibility.

Compliance with technical rules of

procedure is ideal but it cannot be

accorded primacy

Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo and
habeas data was the defective verification which was attached to the petition. In Tagitis,35 supporting
affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not submitted together
with the petition and it was ruled that the defect was fully cured when the petitioner and the witness
personally testified to prove the truth of their allegations in the hearings held before the CA. In the
instant case, the defective verification was not the sole reason for the CAs denial of the petition for the
issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that although rules of
procedure play an important rule in effectively administering justice, primacy should not be accorded to
them especially in the instant case where there was at least substantial compliance with the
requirements and where petitioner himself testified in the hearings to attest to the veracity of the
claims which he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In
the proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations
which he stated in the petition. Hence, the defect in the verification attached to the petition. Hence, the
defect in the verification attached to the petition was deemed cured.

WHEREFORE, premises considered, the petitioner's motion for reconsideration is DENIED WITH
FINALITY.

SO ORDERED.

G.R. No. 183533, September 25, 2012IN THE MATTER OF THE PETITION FOR THEWRIT OF AMPARO AND
THE WRIT OF HABEASDATA IN FAVOR OF FRANCISSAEZ,

Petitioner, vs. GMA, et. al.

FACTS

: On March 6, 2008, the petitioner filed withthe Court a petition to be granted the privilege of thewrits
of amparo and habeas data with prayers for temporary protection order, inspection of place
andproduction of documents. In the petition, heexpressed his fear of being abducted and killed.
Helikewise prayed for the military to cease from further conducting surveillance and monitoring of
hisactivities and for his name to be excluded from theorder of battle and other government
recordsconnecting him to the Communist Party of thePhilippines (CPP).During the hearings, the
petitioner narrated thatstarting April 16, 2007, he noticed that he wasalways being followed by a certain
"Joel," a former colleague at Bayan Muna. "Joel" pretended peddlingpande

sal in the vicinity of the petitioners store.

Three days before the petitioner was apprehended,"Joel" approached and informed him of his
maritalstatus and current job as a baker in Calapan,Mindoro Oriental. "Joel" inquired if the petitioner
wasstill involved with ANAKPAWIS. When asked by theCA justices during the hearing if the petitioner
hadgone home to Calapan after having filed the petition,he answered in the negative explaining that he
wasafraid of Pvt. Osio who was always at the pier. TheCA ruled that the petitioner failed to
presentsufficient evidence to substantiate his petition for habeas data and writ of amparo. The CA
likewisedropped as respondent, for Pres. GMA on theground of her immunity from suit. Hence,
thispetition.

ISSUE

: WON the President should be immediatelydropped as respondent on the ground of her immunity from
suit.

HELD
. NO. The President cannot be automaticallydropped as a respondent pursuant to the

doctrineof command responsibility.

In Noriel Rodriguez v. Gloria Macapagal Arroyo, etal., the Court stated:a. Command responsibility of the
PresidentHaving established the applicability of the doctrine of command responsibility in amparo
proceedings, itmust now be resolved whether the president, ascommander-in-chief of the military, can
be heldresponsible or accountable for extrajudicial killingsand enforced disappearances. We rule in
theaffirmative.To hold someone liable under the doctrine of command responsibility, the following
elements mustobtain:a. the existence of a superior-subordinaterelationship between the accused as
superior andthe perpetrator of the crime as his subordinate;b. the superior knew or had reason to know
that thecrime was about to be or had been committed; andc. the superior failed to take the necessary
andreasonable measures to prevent the criminal acts or punish the perpetrators thereof.The president,
being the commander-in-chief of allarmed forces, necessarily possesses control over the military that
qualifies him as a superior within thepurview of the command responsibility doctrine.On the issue of
knowledge, it must be pointed outthat although international tribunals apply a strictstandard of
knowledge, i.e., actual knowledge, suchmay nonetheless be established throughcircumstantial evidence.
In the Philippines, a moreliberal view is adopted and superiors may becharged with constructive
knowledge. This view isbuttressed by the enactment of Executive Order No.226, otherwise known as the
Institutionalization of the Doct

rine of Command Responsibility in all

Government Offices, particularly at all Levels of Command in thePhilippine National Police and other
LawEnforcement Agencies (E.O. 226). Under E.O. 226,a government official may be held liable for
neglectof duty under the doctrine of command responsibilityif he has knowledge that a crime or offense
shall becommitted, is being committed, or has beencommitted by his subordinates, or by others
withinhis area of responsibility and, despite suchknowledge, he did not take preventive or
correctiveaction either before, during, or immediately after itscommission. Knowledge of the
commission of irregularities, crimes or offenses is presumed when(a) the acts are widespread within the
government

officials area of juri

sdiction; (b) the acts have beenrepeatedly or regularly committed within his area of responsibility; or (c)
members of his immediate staff or office personnel are involved.Pursuant to the doctrine of command
responsibility,the President, as the Commander-in-Chief of the AFP, can be held liable for affront against
the

petitioners rights to life, liberty and security as long

as substantial evidence exist to show that he or shehad exhibited involvement in or can be imputed
withknowledge of the violations, or had failed to exercisenecessary and reasonable diligence in
conductingthe necessary investigations required under therules.
Republic of the Philippines

Supreme Court

Baguio City

EN BANC

ARTURO M. DE CASTRO,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO,

Respondents.

x-----------------------x

JAIME N. SORIANO,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x-----------------------x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x-----------------------x
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE
JUDICIARY,

ESTELITO P. MENDOZA,

Petitioner,

x-----------------------x

JOHN G. PERALTA,

Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC).

Respondent.

x - - - - - - - - - - - - - - - - - - - - - - - -x

PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLES LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past
President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR;

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY
GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA.
CRISTINA ANGELA GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P. ROSALES;

WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-

JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-

VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON;

AQUILINO Q. PIMENTEL, JR.;

Intervenors.

x - - - - - - - - - - - - - - - - - - - - - - - -x

ATTY. AMADOR Z. TOLENTINO, JR., (IBP

GovernorSouthern Luzon), and ATTY. ROLAND B. INTING

(IBP GovernorEastern Visayas),

Petitioners,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),

Respondent.

x-----------------------x

PHILIPPINE BAR ASSOCIATION, INC.,

Petitioner,
- versus -

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,

Respondents.

G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

A.M. No. 10-2-5-SC

G.R. No. 191149

G.R. No. 191342
G.R. No. 191420

Present:

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

April 20, 2010

x-----------------------------------------------------------------------------------------x

RESOLUTION

BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and
the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit;
and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or
before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary
and submit to the President the short list of nominees corresponding thereto in accordance with this
decision.

SO ORDERED.

MOTIONS FOR RECONSIDERATION

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No.
191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the
Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera;
Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello
and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was
allowed.

We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to
designate the Chief Justice belonged to the Supreme Court en banc.

2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment
and did not involve a justiciable controversy.

3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief
Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for
him to participate as a Member of the Court.

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial
appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created
exemptions when none exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an
executive, not a judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to

vary the terms of the clear prohibition.

5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court
has raised the Constitution to the level of a venerated text whose intent can only be divined by its
framers as to be outside the realm of understanding by the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal
composition of the JBC.

Philippine Bar Association

1. The Courts strained interpretation of the Constitution violates the basic principle that the Court
should not formulate a rule of constitutional law broader than what is required by the precise facts of
the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to
apply it. The provision expressly and clearly provides a general limitation on the appointing power of the
President in prohibiting the appointment of any person to any position in the Government without any
qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight
appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight
appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one over
the other, for the Courts duty is to apply the safeguards as they are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting
the Constitution.

6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents
on statutory construction holding that such headings carried very little weight.

7. The Constitution has provided a general rule on midnight appointments, and the only exception is
that on temporary appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the
candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a
view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of supervision over the JBC; hence, the Court cannot
tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and justiciable
case assailing any specific action or inaction of the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.

10. The constitutional ban on appointments being already in effect, the Courts directing the JBC to
comply with the decision constitutes a culpable violation of the Constitution and the commission of an
election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated
by the Court en banc.

12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is
indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong
the outgoing Presidents powers by means of proxies. The attempt of the incumbent President to
appoint the next Chief Justice is undeniably intended to perpetuate her power beyond her term of
office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments
to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela
pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its
phrase other officers whose appointments are vested in him in this Constitution is enough proof that the
limitation on the appointing power of the President extends to appointments to the Judiciary. Thus,
Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in the
Executive and Judicial Branches of the Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief
Justice in all cases.

Lim

1. There is no justiciable controversy that warrants the Courts exercise of judicial review.

2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court
and to other appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII
against midnight appointments in the Judiciary.

Corvera
1. The Courts exclusion of appointments to the Judiciary from the Constitutional ban on midnight
appointments is based on an interpretation beyond the plain and unequivocal language of the
Constitution.

2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and
Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have
obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there is
any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent political
partisanship in all branches of the Government, should have controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the Constitution must be
interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution
should yield to the plain and unequivocal language of the Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with
the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present
a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering that the
office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide whether or not to
submit a list of nominees to the President.

2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of
Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated
the principle of ut magis valeat quam pereat (which mandates that the Constitution should be
interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give effect
to all). There is no conflict between the provisions; they complement each other.

4. The form and structure of the Constitutions titles, chapters, sections, and draftsmanship carry little
weight in statutory construction. The clear and plain language of Section 15, Article VII precludes
interpretation.

Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and
interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual
vacancy in the position of the Chief Justice has yet occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs
in conflict with long standing principles and doctrines of statutory construction. The provision admits
only one exception, temporary appointments in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.

3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on
midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion
of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill
any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next
President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within which
to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough
opportunity to examine the nominees without haste and political uncertainty.

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The
directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election
offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en
banc, even when it acts as the sole judge of all contests relative to the election, returns and
qualifications of the President and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.

WTLOP

1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief
Justice to the President on or before May 17, 2010, and to continue its proceedings for the nomination
of the candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not
provided by law or the Constitution; exercised control instead of mere supervision over the JBC; and
lacked sufficient votes to reverse Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948
already provides that the power and duties of the office devolve on the most senior Associate Justice in
case of a vacancy in the office of the Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation

2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent
records of the Constitutional Commission are clear and unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17,
2010 at the latest, because no specific law requires the JBC to submit the list of nominees even before
the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the
temporary appointment to an executive position. The limitation is in keeping with the clear intent of the
framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to make
appointments.

2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments
makes the appointee beholden to the outgoing Chief Executive, and compromises the independence of
the Chief Justice by having the outgoing President be continually influential.

3. The Courts reversal of Valenzuela without stating the sufficient reason violates the principle of stare
decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is
prohibited from making within the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight appointments extends to judicial
appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must
first act not in accord with prescribed rules before the act can be redone to conform to the prescribed
rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present
a justiciable controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the
general intent of the Constitution as a limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the citizenry from an ever expanding
grant of authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner totally repugnant to
republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution
without proper authority.

COMMENTS

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments,
thus:

OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the
position of Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

4. The principles of constitutional construction favor the exemption of the Judiciary from the
ban on midnight appointments.

5. The Court has the duty to consider and resolve all issues raised by the parties as well as other
related matters.

JBC

1. The consolidated petitions should have been dismissed for prematurity, because the JBC has
not yet decided at the time the petitions were filed whether the incumbent President has the power to
appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not
submitted a short list to the President.

2. The statement in the decision that there is a doubt on whether a JBC short list is necessary
for the President to appoint a Chief Justice should be struck down as bereft of constitutional and legal
basis. The statement undermines the independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its constitutional
mandate and its implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG
and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved.
His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and
the separate opinion.

2. The administrative matter he brought invoked the Courts power of supervision over the JBC
as provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Courts adjudicatory
power under Section 1, Article VIII. In the former, the requisites for judicial review are not required,
which was why Valenzuela was docketed as an administrative matter. Considering that the JBC itself has
yet to take a position on when to submit the short list to the proper appointing authority, it has
effectively solicited the exercise by the Court of its power of supervision over the JBC.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the
Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of
Justice Carpio Morales, as well as in some of the motions for reconsideration do not refer to either
Section 15, Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism).

RULING

We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and
argued, not being new, have all been resolved by the decision of March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist
that the Court has erred in disobeying or abandoning Valenzuela.[1]

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It simply means that a principle underlying the
decision in one case is deemed of imperative authority, controlling the decisions of like cases in the
same court and in lower courts within the same jurisdiction, unless and until the decision in question is
reversed or overruled by a court of competent authority. The decisions relied upon as precedents are
commonly those of appellate courts, because the decisions of the trial courts may be appealed to higher
courts and for that reason are probably not the best evidence of the rules of law laid down. [2]

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.[3] In a hierarchical judicial system like ours, the decisions of the higher courts bind the lower
courts, but the courts of co-ordinate authority do not bind each other. The one highest court does not
bind itself, being invested with the innate authority to rule according to its best lights.[4]

The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not obliged to follow blindly a particular decision that it
determines, after re-examination, to call for a rectification.[5] The adherence to precedents is strict and
rigid in a common-law setting like the United Kingdom, where judges make law as binding as an Act of
Parliament.[6] But ours is not a common-law system; hence, judicial precedents are not always strictly
and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the court in the latter case
accepts such reasoning and justification to be applicable to the case. The application of the precedent is
for the sake of convenience and stability.

For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and
that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority
of the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision
rendered en banc or in division.[7]

Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional
Commission extended to the Judiciary the ban on presidential appointments during the period stated in
Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but
only Section 13, Article VII, a provision on nepotism. The records of the Constitutional Commission show
that Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to the
President within the fourth civil degree of consanguinity or affinity among the persons whom the
President might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr.
withdrew the proposal to include the Judiciary in Section 13, Article VII (t)o avoid any further
complication,[8] such that the final version of the second paragraph of Section 13, Article VII even
completely omits any reference to the Judiciary, to wit:

Section 13. xxx

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall
not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.

Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many
principles of statutory construction.

The movants gravely err in their posture, and are themselves apparently contravening their avowed
reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of
the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle
of verba legis. That is self-contradiction at its worst.

Another instance is the movants unhesitating willingness to read into Section 4(1) and Section 9, both of
Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for
doing so would generally constitute an encroachment upon the field of the Constitutional Commission.
Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is clear and
explicit, and no words can be interpolated in them.[9] Interpolation of words is unnecessary, because
the law is more than likely to fail to express the legislative intent with the interpolation. In other words,
the addition of new words may alter the thought intended to be conveyed. And, even where the
meaning of the law is clear and sensible, either with or without the omitted word or words,
interpolation is improper, because the primary source of the legislative intent is in the language of the
law itself.[10]

Thus, the decision of March 17, 2010 has fittingly observed:

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not have
ignored the meticulous ordering of the provisions. They would have easily and surely written the
prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.

We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to
suit the purposes of any quarter.

FINAL WORD

It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a majority of
them are now granting to her the authority to appoint the successor of the retiring Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any
claim to the contrary proceeds from malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to happen and to evolve as it has.
None of the Members of the Court could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her prolonged term and tenure, for
their retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution
to fill up the vacancies created by such inexorable retirements within 90 days from their occurrence. Her
official duty she must comply with. So must we ours who are tasked by the Constitution to settle the
controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.

Power of the Judiciary: De Castro vs. JBC (G.R. No. 191002, April 20, 2010)

Facts:
This is a Motion for Reconsideration on the March 17, 2010 decision of the Court. The said decision
directs the Judicial and Bar Council to resume its proceedings for the nomination of candidates to fill the
vacancy created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010, and to
prepare the short list of nominees and submit it to the incumbent President. Movants argue that the
disputed constitutional provision, Art. VII, Sec. 15 and Art. VIII, Sec. 4(1), clearly intended the ban on
midnight appointments to cover the members of the Judiciary, and they contended that the principle of
stare decisis is controlling, and insisted that the Court erred in disobeying or abandoning the Valenzuela
ruling.

ISSUE (Section 4):

Did the Constitutional Commission extend to the Judiciary the ban on presidential appointments during
the period stated in Sec. 15, Article VII?

RULING:

The Constitutional Commission did not extend to the Judiciary the ban on presidential appointments
during the period stated in Sec. 15, Art. VII. The deliberations that the dissent of Justice Carpio Morales
quoted from the records of the Constitutional Commission did not concern either Sec. 15, Art. VII or Sec.
4(1), Art. VIII, but only Sec. 13, Art. VII, a provision on nepotism.

Election ban on appointments does not extend to the Supreme Court. The Court upheld its March 17,
2010 decision ruling that the prohibition under Art. VII, Sec. 15 of the Constitution against presidential
appointments immediately before the next presidential elections and up to the end of the term of the
outgoing president does not apply to vacancies in the Supreme Court.
EN BANC

[G.R. No. 131136. February 28, 2001]

CONRADO L. DE RAMA, petitioner, vs. THE COURT OF APPEALS (NINTH DIVISION, THE CIVIL SERVICE
COMMISSION), ELADIO MARTINEZ, DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA,
FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD ORINDAY, MA. PETRA MUFFET LUCE, ELSA MARINO,
BERNARDITA MENDOZA, JANE MACATANGAY, ADELFO GLODOVIZA and FLORINO RAMOS, respondents.

DECISION

YNARES-SANTIAGO, J.:

Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Rama
wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees, namely:

NAME POSITION DATE OF

APPOINTMENT

Eladio Martinez Registration Officer I June 1, 1995

Divino de Jesus Bookbinder III June 1, 1995

Morell Ayala Accounting Clerk III June 16, 1995

Daisy Porta Clerk IV June 27, 1995

Aristeo Catalla Gen. Services Officer June 19, 1995

Elsa Marino Mun. Agriculturist June 19, 1995

Gracella Glory Bookkeeper II June 27, 1995

Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995

Felicidad Orindag Accounting Clerk II June 27, 1995

Bernardita Mendoza Agricultural Technologist June 27, 1995

Flordeliza Oriazel Clerk I June 27, 1995

Jane Macatangay Day Care Worker I June 27, 1995

Adolfo Glodoviza Utility Worker II June 27, 1995

Florencio Ramos Utility Foreman June 27, 1995[1]

Petitioner de Rama justified his recall request on the allegation that the appointments of the said
employees were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation of
Article VII, Section 15 of the 1987 Constitution, which provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety. (Underscoring supplied)

While the matter was pending before the CSC, three of the above-named employees, namely: Elsa
Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries,
alleging that although their appointments were declared permanent by Conrado Gulim, Director II of the
CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries and
benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the
appointments of the said fourteen (14) employees were recalled.

Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial Division
of the CSC issued an Order[2] finding that since the claimants-employees had assumed their respective
positions and performed their duties pursuant to their appointments, they are therefore entitled to
receive the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10 of the Omnibus
Rules[3] which provides, in part, that if the appointee has assumed the duties of the position, he shall be
entitled to receive his salary at once without awaiting the approval of his appointment by the
Commission, the CSC Legal and Quasi-Judicial Division ruled that the said employees cannot be deprived
of their salaries and benefits by the unilateral act of the newly-assumed mayor.

On April 30, 1996, the CSC denied petitioners request for the recall of the appointments of the fourteen
employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus Rules, and
declared that the appointments of the said employees were issued in accordance with pertinent laws.
Thus, the same were effective immediately, and cannot be withdrawn or revoked by the appointing
authority until disapproved by the CSC. The CSC also dismissed petitioners allegation that these were
midnight appointments, pointing out that the Constitutional provision relied upon by petitioner
prohibits only those appointments made by an outgoing President and cannot be made to apply to local
elective officials. Thus, the CSC opined, the appointing authority can validly issue appointments until his
term has expired, as long as the appointee meets the qualification standards for the position.[4]

The CSC upheld the validity of the appointments on the ground that they had already been approved by
the Head of the CSC Field Office in Lucena City, and for petitioners failure to present evidence that
would warrant the revocation or recall of the said appointments.

Petitioner moved for the reconsideration of the CSCs Resolution, as well as the Order of the CSC Legal
and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to revoke the
subject appointments; and (2) to uphold the validity of said appointments, even assuming that there
was failure to present evidence that would prove that these appointments contravened existing laws or
rules. He also posited that the CSC erred in finding the appointments valid despite the existence of
circumstances showing that the same were fraudulently issued and processed.

On November 21, 1996, the CSC denied petitioners motion for reconsideration. The CSC reiterated its
ruling that:

In the absence of any showing that these alleged midnight appointments were defective in form and in
substance, nor is there evidence presented to show that subject appointments were issued in
contravention of law or rules, these appointments are deemed valid and in effect.

xxxxxxxxx
Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled
because of any of the abovementioned grounds enumerated. As a matter of fact, said appointments
were even approved by the Head, Civil Service Field Office, Lucena City when submitted for attestation.
In the absence of a clear showing that these appointments were issued in violation of any of these
grounds, the Commission has no other recourse but to uphold their validity. (Underscoring supplied)

The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil Service Commission[5] wherein
this Court held that:

It is well-settled that once an appointment is issued and the moment the appointee assumes a position
in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to
the position), which is protected not only by statute, but also by the Constitution, and cannot be taken
away from him either by revocation of the appointment, or by removal, except for cause, and with
previous notice and hearing. (Emphasis supplied)

Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC
arrived at the erroneous conclusion after it ignored his supplement to the consolidated appeal and
motion for reconsideration wherein he laid out evidence showing that the subject appointments were
obtained through fraud.

After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a Resolution[6]
dated May 16, 1997 which held that there was no abuse of the power of appointment on the part of the
outgoing mayor.

The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos,
Mendoza and Glory were made more than four (4) months after the publication of the vacancies to
which they were appointed is of no moment. Setting aside petitioners suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local
government service must be made within four (4) months from publication of the vacancies. It cited
Section 80 of said Act, to wit:

Section 80. Public Notice of Vacancy: Personnel Selection Board. (a) Whenever a local chief executive
decides to fill a vacant career position, there shall be posted notices of the vacancy in at least three (3)
conspicuous public places in the local government unit concerned for a period of not less than fifteen
(15) days.
(b) There shall be established in every province, city or municipality a personnel selection board to assist
the local chief executive in the judicious and objective selection of personnel for employment as well as
for promotion, and in the formulation of such policies as would contribute to employee welfare.

(c) The personnel selection board shall be headed by the local sanggunian concerned. A representative
of the Civil Service Commission, if any, and the personnel officer of the local government unit concerned
shall be ex officio members of the board.[7]

Likewise, neither did the CSCs own Circular Order No. 27, Section 7, Series of 1991, require that vacant
positions published in a government quarterly must be filled up before the advent of the succeeding
quarter.

On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for
review.

Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the
CSCs resolutions despite the following defects:

I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating
the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the
law;

III. Merit and fitness requirements were not observed by the selection board and by the appointing
authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.[8]

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration.

Hence, the instant petition for review on certiorari on the following assigned errors:
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THE
CIVIL SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING THE PETITIONERS RECALL OF THE
APPOINTMENTS OF PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND
LAWS ON ISSUANCE OF APPOINTMENTS.

II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR
GROUNDS NAMELY:

I. No screening process and no criteria were adopted by the Personnel Selection Board in nominating
the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the
law;

III. Merit and fitness requirements were not observed by the selection board and by the appointing
authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.

ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY THE PETITIONER
WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON ISSUANCE OF APPOINTMENTS AS
RAISED BEFORE THE RESPONDENT CIVIL SERVICE COMMISSION.

Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law and not
being supported by the evidence on record.

This argument is too specious to be given credence. The records reveal that when the petitioner brought
the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the
only reason he cited to justify his action was that these were midnight appointments that are forbidden
under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly so, that the said
prohibition applies only to presidential appointments. In truth and in fact, there is no law that prohibits
local elective officials from making appointments during the last days of his or her tenure. Petitioner
certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments.
Neither did he allege that the said appointments were tainted by irregularities or anomalies that
breached laws and regulations governing appointments. His solitary reason for recalling these
appointments was that they were, to his personal belief, midnight appointments which the outgoing
mayor had no authority to make.

Even in petitioners consolidated appeal and motion for reconsideration, he did not make any assertion
that these appointments were violative of civil service rules and procedures. Indeed, he harped on the
CSCs alleged lack of jurisdiction to refuse to recall the subject appointments. After first invoking the
authority of the CSC to approve or affirm his act, he then contradicted himself by arguing that the CSC
had no jurisdiction to do so, but only after the CSC had ruled that the recall was without legal basis. He
emphasized that he alone has sole discretion to appoint and recall the appointment of municipal
employees, an authority which, he stressed, the CSC cannot usurp. Yet, nowhere in said pleading did he
cite any other ground, much less present proof that would warrant the recall of said appointments.

Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to the
appeal and motion for reconsideration where, for the very first time, he alleged that the appointments
were fraught with irregularities for failing to comply with CSC rules and regulations. Nevertheless, the
CSC overruled petitioners assertions, holding that no new evidence had been presented to warrant a
reversal of its earlier resolution.

Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSCs conclusion
because it had ignored the allegations and documents he presented in the supplement to his earlier
consolidated appeal and motion for reconsideration. He argued that these form part of the records of
the case and that the CSC erred in failing to consider the assertions he raised therein. The appellate
court, however, agreed with the CSC when it ruled that the documents presented by petitioner in the
supplemental pleading did not constitute new evidence that would convince the CSC to reverse its
earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed petitioners allegations and
documents attached to the supplemental pleading for they did not constitute new evidence that a court,
board or tribunal may entertain.

Herein lies the inconsistency of petitioners arguments. He faults the Court of Appeals and the CSC for
ignoring his supplemental pleading, while at the same time arguing that the grounds for recall such as
violations of laws and regulations on issuance of appointments are not new issues because he had
timely raised them before the CSC.

There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an
original pleading, but which should not entirely substitute the latter.[9] The propriety and substance of
supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil Procedure,
which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the pleading sought to be supplemented.
The adverse party may plead thereto within ten (10) days from notice of the order admitting the
supplemental pleading.

Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or
tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental
pleading, or even to consider the averments therein.

Secondly, a supplemental pleading must state transactions, occurrences or events which took place
since the time the pleading sought to be supplemented was filed. In the instant case, petitioner alleged
fraud and irregularities that supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first opportunity. They are not new events
which petitioner could not have originally included as grounds for the recall of the appointments.

Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental
pleading did not constitute new evidence that can be the proper subject of a supplemental pleading.
These were old facts and issues which he failed to raise earlier. Consequently, the CSC and the Court of
Appeals did not err in refusing to give credence to the supplemental pleading.

Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals as
new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise
these issues for the first time on appeal. It is well-settled that issues or questions of fact cannot be
raised for the first time on appeal.[10] We have consistently held that matters, theories or arguments
not brought out in the original proceedings cannot be considered on review or appeal where they are
raised for the first time.[11] To consider the alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in the proceedings would amount to
trampling on the basic principles of fair play, justice and due process.[12]

The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to the
consolidated appeal and motion for reconsideration are that: (1) the rules on screening of applicants
based on adopted criteria were not followed; (2) there was no proper posting of notice of vacancy; and
(3) the merit and fitness requirements set by the civil service rules were not observed. These are
grounds that he could have stated in his order of recall, but which he did not. Neither did he raise said
grounds in his original appeal, but only by way of a supplemental pleading. Failure of the petitioner to
raise said grounds and to present supporting documents constitute a waiver thereof, and the same
arguments and evidence can no longer be entertained on appeal before the CSC, nor in the Court of
Appeals, and much less in a petition for review before the Supreme Court.[13] In fine, the raising of
these factual issues for the first time in a pleading which is supplemental only to an appeal is barred by
estoppel.[14]

Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that the
jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the Revised
Rules of Court is limited to reviewing only errors of law, not of fact.[15] That is, of course, unless the
factual findings assailed by petitioner are devoid of support by the evidence on record or the impugned
judgment is based on a misapprehension of facts.[16]

A thorough perusal of the records reveal that the CSCs ruling is supported by the evidence and the law.
The fourteen (14) employees were duly appointed following two meetings of the Personnel Selection
Board held on May 31 and June 26, 1995. There is no showing that any of the private respondents were
not qualified for the positions they were appointed to. Moreover, their appointments were duly
attested to by the Head of the CSC field office at Lucena City. By virtue thereof, they had already
assumed their appointive positions even before petitioner himself assumed his elected position as town
mayor. Consequently, their appointments took effect immediately and cannot be unilaterally revoked or
recalled by petitioner.

It has been held that upon the issuance of an appointment and the appointees assumption of the
position in the civil service, he acquires a legal right which cannot be taken away either by revocation of
the appointment or by removal except for cause and with previous notice and hearing.[17] Moreover, it
is well-settled that the person assuming a position in the civil service under a completed appointment
acquires a legal, not just an equitable, right to the position. This right is protected not only by statute,
but by the Constitution as well, which right cannot be taken away by either revocation of the
appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice
and hearing.[18]

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue
Office Order No. 95-01 which recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue
haste to remove the private respondents without regard for the simple requirements of due process of
law. In doing so, he overstepped the bounds of his authority. While he argues that the appointing power
has the sole authority to revoke said appointments, there is no debate that he does not have blanket
authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code
specifically provides that an appointment accepted by the appointee cannot be withdrawn or revoked
by the appointing authority and shall remain in force and in effect until disapproved by the Commission.
Thus, it is the CSC that is authorized to recall an appointment initially approved, but only when such
appointment and approval are proven to be in disregard of applicable provisions of the civil service law
and regulations.[19]

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties
of the position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission. The appointment shall remain effective until disapproved by the
Commission. In no case shall an appointment take effect earlier than he date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:

(a) Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;

(b) Failure to pass through the agencys Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees relative to
promotion; or

(d) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were
midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-
called midnight appointments, specifically those made within two (2) months immediately prior to the
next presidential elections, applies only to the President or Acting President.
If ever there were other procedural or legal requirements that were violated in implementing the
appointments of the private respondents, the same were not seasonably brought before the Civil
Service Commission. These cannot be raised for the first time on appeal.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the Resolution of
the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 96-2828 and 96-7527 is
hereby AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

Case Digest: G.R. No. 131136. February 28, 2001

Conrado L. De Rama, petitioner, vs. The Court Of Appeals (Ninth Division, The Civil Service Commission),
Eladio Martinez, Divino De Jesus, Morell Ayala, Aristeo Catalla, Daisy Porta, Flordeliza Oriasel, Graciela
Glory, Felecidad Orinday, Ma. Petra Muffet Luce, Elsa Marino, Bernardita Mendoza, Jane Macatangay,
Adelfo Glodoviza and Florino Ramos, respondents.

Facts: Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Rama
wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees. Justifying his recall request on the allegation that
the appointments of the said employees were midnight appointments of the former mayor, Ma.
Evelyn S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution. The CSC denied
petitioners request for the recall of the appointments of the fourteen employees, for lack of merit. The
CSC upheld the validity of the appointments on the ground that they had already been approved by the
Head of the CSC Field Office in Lucena City, and for petitioners failure to present evidence that would
warrant the revocation or recall of the said appointments.

Issue: whether or not the recall made by petitioner is valid.

Ruling: No. It is the CSC that is authorized to recall an appointment initially approved, but only when
such appointment and approval are proven to be in disregard of applicable provisions of the civil service
law and regulations. Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised
Administrative Code specifically provides that an appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall remain in force and in effect until
disapproved by the Commission.

Accordingly, the appointments of the private respondents may only be recalled on the following
grounds: (a) Non-compliance with the procedures/criteria provided in the agencys Merit Promotion
Plan; (b) Failure to pass through the agencys Selection/Promotion Board; (c) Violation of the existing
collective agreement between management and employees relative to promotion; or (d) Violation of
other existing civil service law, rules and regulations.

DE RAMA VS CA

Posted by kaye lee on 12:04 AM

353 SCRA 94 G.R. No. 131136 February 28 2001 [Midnight appointments]

Evelyn Abeja run for reelection but lost to de Rama. Before she vacated her office, she extended
permanent appointments to 14 new employees of the municipal government. de Rama, upon assuming
office, recalled said appointments contending that these were "midnight appointments" and, therefore,
prohibited under Sec. 15 Art. VII of the Constitution. SC held that the records reveal that when de Rama
brought the matter recalling the appointments of the 14 employees before the Civil Service Commission,
the only reason he cited to justify his actions that these were "midnight appointments" that are
forbidden under the Constitution. However, the CSC ruled, and correctly so, that the said prohibitions
applies only to presidential appointments. In truth and in fact, there is no law that prohibits local
elective officials from making appointments during the last days of his or her tenure.
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 203372 June 16, 2015

ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,

vs.

OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.

x-----------------------x

G.R. No. 206290

ATTY. DINDO G. VENTURANZA, Petitioner,

vs.

OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity as the Secretary of the Department of
Justice, CLARO A. ARELLANO, in his capacity as the Prosecutor General, and RICHARD ANTHONY D.
FADULLON, in his capacity as the Officer-in-Charge of the Office of the City Prosecutor of Quezon City,
Respondents.

x-----------------------x

G.R. No. 209138

IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,

vs.

COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.

x-----------------------x

G.R. No. 212030

EDDIE U. TAMONDONG, Petitioner,

vs.

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.

DECISION

CARPIO, J.:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-
Garafil (Atty. Velicaria-Garafil), who was appointed State Solicitor II at the Office of the Solicitor General
(OSG), as petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was
appointed Prosecutor IV (City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A.
Villanueva (Villanueva), who was appointed Administrator for Visayas of the Board of Administrators of
the Cooperative Development Authority (CDA), and Francisca B. Rosquita (Rosquita), who was appointed
Commissioner of the National Commission of Indigenous Peoples (NCIP), as petitioners; and G.R. No.
212030 with Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed member of the Board of
Directors of the Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions question the
constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with Section 15, Article VII of the
1987 Constitution.

Petitioners seek the :reversal of the separate Decisions of the Court of Appeals (CA) that dismissed their
petitions and upheld the constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-Garafil is a
Petition for Review on Certiorari,1 assailing the Decision2 dated 31 August 2012 of the CA in CA-G.R. SP
No. 123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for Review on Certiorari,3 assailing
the Decision4 dated 31 August 2012 and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No.
123659. G.R. No. 209138 filed by Villanueva and Rosquita is a Petition for Certiorari,6 seeking to nullify
the Decision7 dated 28 August 2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.8
Villanueva and Rosquita filed a Petition-in-Intervention in the consolidated cases before the CA. G.R. No.
212030 is a Petition for Review on Certiorari,9 assailing the Decision10 dated 31 August 2012 of the CA
in CAG.R. SP No. 123664 and Resolution11 dated 7 April 2014 of the CA in CAG.R. SP Nos. 123662,
123663, and 123664.12
Facts of the Cases

Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) issued more than 800 appointments to various positions in several government
offices.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads:

Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public
safety.

Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for valid appointments and
the next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII
of the 1987 Constitution recognizes as an exception to the ban on midnight appointments only
"temporary appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety." None of the petitioners claim that their appointments fall under this
exception.

Appointments

G.R. No. 203372

The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II at the OSG was dated 5
March 2010.13 There was a transmittal letter dated 8 March 2010 of the appointment paper from the
Office of the President (OP), but this transmittal letter was received by the Malacaang Records Office
(MRO) only on 13 May 2010. There was no indication as to the OSG's date of receipt of the appointment
paper. On 19 March 2010, the OSG's Human Resources Department called up Atty. Velicaria-Garafil to
schedule her oath-taking. Atty. Velicaria-Garafil took her oath of office as State Solicitor II on 22 March
2010 and assumed her position on 6 April 2010.

G.R. No. 206290

The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City Prosecutor) of Quezon City
was dated 23 February 2010.14 It is apparent, however, that it was only on 12 March 2010 that the OP,
in a letter dated 9 March 2010, transmitted Atty. Venturanza's appointment paper to then Department
of Justice (DOJ) Secretary Alberto C. Agra.15 During the period between 23 February and 12 March
2010, Atty. Venturanza, upon verbal advice from Malacaang of his promotion but without an official
copy of his appointment paper, secured clearances from the Civil Service Commission (CSC),16
Sandiganbayan,17 and the DOJ.18 Atty. Venturanza took his oath of office on 15 March 2010, and
assumed office on the same day.

G.R. No. 209138

The paper evidencing Villanueva's appointment as Administrator for Visayas of the Board of
Administrators of the CDA was dated 3 March 2010.19 There was no transmittal letter of the
appointment paper from the OP. Villanueva took her oath of office on 13 April 2010.

The paper evidencing Rosquita's appointment as Commissioner, representing Region I and the
Cordilleras, of the NCIP was dated 5 March 2010.20 Like Villanueva, there was no transmittal letter of
the appointment paper from the OP. Rosquita took her oath of office on 18 March 2010. G.R. No.
212030

The paper evidencing Atty. Tamondong's appointment as member, representing the private sector, of
the SBMA Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted that the
appointment paper was received by the Office of the SBMA Chair on 25 March 201022 and that he took
his oath of office on the same day.23 He took another oath of office on 6 July 2010 as "an act of extra
caution because of the rising crescendo of noise from the new political mandarins against the so-called
'midnight appointments."'24

To summarize, the pertinent dates for each petitioner are as follows:

G.R. No. Date of Appointment Letter Date of Transmittal Letter Date of Receipt by MRO
Date of Oath of Office Assumption of Office

203372

(Atty. Velicaria-Garafil) 5 March 2010 8 March 2010 13 May 2010 22 March 2010 6 April 2010

206290
(Atty. Venturanza) 23 February 2010 9 March 2010 12 March 2010 15 March 2010 15
March 2010

209138

(Villanueva) 3 March 2010 4 May 2010 13 April 2010

209138

(Rosquita) 5 March 2010 13 May 2010 18 March 2010

212030

(Atty. Tamondong) 1 March 2010 25 March 2010 and

6 July 2010

Issuance of EO 2

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President
of the Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing,
and revoking appointments issued by President Macapagal-Arroyo which violated the constitutional ban
on midnight appointments.

The entirety of EO 2 reads:

EXECUTIVE ORDER NO. 2

RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS

ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND
FOR OTHER PURPOSES.

WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "Two months immediately before
the next presidential elections and up to the end of his term, a President or Acting President shall not
make appointments, except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety."; WHEREAS, in the case of "In re:
Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon. Vallarta as Judges of the
Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No.
98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean that the President is
neither required to make appointments nor allowed to do so during the two months immediately before
the next presidential elections and up to the end of her term. The only known exceptions to this
prohibition are (1) temporary appointments in the executive positions when continued vacancies will
prejudice public service or endanger public safety and in the light of the recent Supreme Court decision
in the case of De Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to
the Judiciary;

WHEREAS, Section 261 of the Omnibus Election Code provides that:

"Section 261. Prohibited Acts.-The following shall be guilty of an election offense:

(g) Appointments of new employees, creation of new position, promotion, or giving salary increases. -
During the period of forty-five days before a regular election and thirty days before a special election.

(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who appoints or hires any
new employee, whether provisional, temporary or casual, or creates and fills any new position, except
upon prior authority to the Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent
need:

Provided, however, that notice of the appointment shall be given to the Commission within three days
from the date of the appointment. Any appointment or hiring in violation of this provision shall be null
and void.

(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to
any government official or employee, including those in government-owned or controlled
corporations.";

WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010
in complete disregard of the intent and spirit of the constitutional ban on midnight appointment and
which deprives the new administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon
acceptance of the appointee;

WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that
appointments to the civil service must be made on the basis of merit and fitness, it is imperative to
recall, withdraw, and revoke all appointments made in violation of the letter and spirit of the law;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution
as President of the Philippines, do hereby order and direct that:

SECTION 1. Midnight Appointments Defined. - The following appointments made by the former
President and other appointing authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be considered as midnight appointments:

(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11,
2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March
11, 2010, except temporary appointments in the executive positions when continued vacancies will
prejudice public service or endanger public safety as may be determined by the appointing authority.

(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that
would be vacant only after March 11, 2010.

(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections
in violation of Section 261 of the Omnibus Election Code.

SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as

defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or
otherwise affected are hereby declared vacant.

SECTION 3. Temporary designations. - When necessary to maintain efficiency in public service and
ensure the continuity of government operations, the Executive Secretary may designate an officer-in-
charge (OIC) to perform the duties and discharge the responsibilities of any of those whose appointment
has been recalled, until the replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations or part thereof
inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.

SECTION 5. Separability Clause. - If any section or provision of this executive order shall be declared
unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force
and effect.

SECTION 6. Effectivity. - This Executive order shall take effect immediately.

DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.

By the President:

(Sgd.) PAQUITO N. OCHOA, JR.

Executive Secretary25

(Sgd.) BENIGNO S. AQUINO III

Effect of the Issuance of EO 2

G.R. No. 203372

On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen. Cadiz). On 6 August
2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform the officers and employees
affected by EO 2 that they were terminated from service effective the next day.

Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of her termination.
She was made to return the office-issued laptop and cellphone, and was told that her salary ceased as of
7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was informed that her former secretary at the
OSG received a copy of a memorandum on her behalf. The memorandum, dated 9 August 2010, bore
the subject "Implementation of Executive Order No. 2 dated 30 July 2010" and was addressed to the
OSG's Director of Finance and Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court on 1 September
2010. The petition prayed for the nullification of EO 2, and for her reinstatement as State Solicitor II
without loss of seniority, rights and privileges, and with full backwages from the time that her salary was
withheld.26

G.R. No. 206290

On 1 September 2010, Atty. Venturanza received via facsimile transmission an undated copy of DOJ
Order No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima), designated
Senior Deputy State Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of the
Office of the City Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty.
Venturanza asked for clarification of his status, duties, and functions since DOJ Order No. 556 did not
address the same. Atty. Venturanza also asked for a status quo ante order to prevent Pros. Fadullon
from usurping the position and functions of the City Prosecutor of Quezon City. Atty. Venturanza also
wrote a letter to President Aquino on the same day, and sought reaffirmation of his promotion as City
Prosecutor of Quezon City.

On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec. De Lima which
directed him to relinquish the office to which he was appointed, and to cease from performing its
functions.

Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent Prayer for Status
Quo Ante Order, Temporary Restraining Order and/or Preliminary Mandatory Injunction (G.R. No. 193
867) before this Court on 14 October 2010.27

G.R. No. 209138

The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August 2010,
Villanueva and Rosquita sought to intervene in G.R. No. 192991.28 On 1 October 2010, Executive
Secretary Paquito N. Ochoa, Jr. revoked Rosquita's appointment as NCIP Commissioner.29 On 13
October 2010, Villanueva and Rosquita notified this Court that they wanted to intervene in Atty.
Tamondong's petition (G.R. No. 192987) instead.

G.R. No. 212030

Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. He filed a petition for
prohibition, declaratory relief and preliminary injunction with prayer for temporary restraining order
(G.R. No. 192987) before this Court on 9 August 2010. The petition prayed for the prohibition of the
implementation of EO 2, the declaration of his appointment as legal, and the declaration of EO 2 as
unconstitutional.30

Referral to CA

There were several petitions31 and motions for intervention32 that challenged the constitutionality of
EO 2.

On 31 January 2012, this Court issued a Resolution referring the petitions, motions for intervention, as
well as various letters, to the CA for further proceedings, including the reception and assessment of the
evidence from all parties. We defined the issues as follows:

1. Whether the appointments of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;

2. Whether all midnight appointments, including those of petitioners and intervenors, were invalid;

3 . Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith; and

4. Whether EO 2 violated the Civil Service Rules on Appointment.33

This Court gave the CA the authority to resolve all pending matters and applications, and to decide the
issues as if these cases were originally filed with the CA.

Rulings of the CA

Even though the same issues were raised in the different petitions, the CA promulgated separate
Decisions for the petitions. The CA consistently ruled that EO 2 is constitutional. The CA, however, issued
different rulings as to the evaluation of the circumstances of petitioners' appointments. In the cases of
Attys. Velicaria-Garafil and Venturanza, the CA stated that the OP should consider the circumstances of
their appointments. In the cases of Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated
that the revocation of their appointments was proper because they were midnight appointees.

G.R. No. 203372 (CA-G.R. SP No. 123662)

The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The CA ruled that EO 2 is
not unconstitutional. However, the CA relied on Sales v. Carreon34 in ruling that the OP should evaluate
whether Atty. Velicaria-Garafil's appointment had extenuating circumstances that might make it fall
outside the ambit of EO 2.

The dispositive portion of the CA's Decision reads:

WHEREFORE, the petition for certiorari and mandamus [is] DENIED.

Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.

The issue on whether or not to uphold petitioner's appointment as State Solicitor II at the OSG is hereby
referred to the Office of the President which has the sole authority and discretion to pass upon the
same.

SO ORDERED.35

G.R. No. 212030 (CA-G.R. SP No. 123664)

On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The dispositive portion
reads as follows:

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is
hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondong's
appointment as Director of Subic Bay Metropolitan Authority is VALID for being a midnight
appointment.
SO ORDERED.39

The Issues for Resolution

We resolve the following issues in these petitions: (1) whether petitioners' appointments violate Section
15, Article VII of the 1987 Constitution, and (2) whether EO 2 is constitutional. Ruling of the Court

The petitions have no merit. All of petitioners' appointments are midnight appointments and are void
for violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional. Villanueva and
Rosquita, petitioners in G.R. No. 209138, did not appeal the CA's ruling under Rule 45, but instead filed a
petition for certiorari under Rule 65. This procedural error alone warrants an outright dismissal of G.R.
No. 209138. Even if it were correctly filed under Rule 45, the petition should still be dismissed for being
filed out of time.40 There was also no explanation as to why they did not file a motion for
reconsideration of the CA's Decision. Midnight Appointments

This ponencia and the dissent both agree that the facts in all these cases show that "none of the
petitioners have shown that their appointment papers (and transmittal letters) have been issued (and
released) before the ban."41 The dates of receipt by the MRO, which in these cases are the only reliable
evidence of actual transmittal of the appointment papers by President Macapagal-Arroyo, are dates
clearly falling during the appointment ban. Thus, this ponencia and the dissent both agree that all the
appointments in these cases are midnight appointments in violation of Section 15, Article VII of the 1987
Constitution.

Constitutionality of EO 2

Based on prevailing jurisprudence, appointment to a government post is a process that takes several
steps to complete. Any valid appointment, including one made under the exception provided in Section
15, Article VII of the 1987 Constitution, must consist of the President signing an appointee's
appointment paper to a vacant office, the official transmittal of the appointment paper (preferably
through the MRO), receipt of the appointment paper by the appointee, and acceptance of the
appointment by the appointee evidenced by his or her oath of office or his or her assumption to office.

Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987 Constitution. Aytona
defined "midnight or last minute" appointments for Philippine jurisprudence.1wphi1 President Carlos
P. Garcia submitted on 29 December 1961, his last day in office, 350 appointments, including that of
Dominador R. Aytona for Central Bank Governor. President Diosdado P. Macapagal assumed office on 30
December 1961, and issued on 31 December 1961 Administrative Order No. 2 recalling, withdrawing,
and cancelling all appointments made by President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal appointed Andres V. Castillo as Central Bank
Governor on 1 January 1962. This Court dismissed Aytona's quo warranto proceeding against Castillo,
and upheld Administrative Order No. 2's cancellation of the "midnight or last minute" appointments. We
wrote:

x x x But the issuance of 350 appointments in one night and the planned induction of almost all of them
a few hours before the inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort
to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new
administration of an opportunity to make the corresponding appointments.

x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia exercised
such "double care" which was required and expected of him; and therefore, there seems to be force to
the contention that these appointments fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that
it must decline to disregard the Presidential .Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.

Of course the Court is . aware of many precedents to the effect that once an appointment has been
issued, it cannot be reconsidered, specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three hundred and fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation and if any circumstances justify revocation, those
described herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the
appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be
successfully set up in the present situation, considering the rush conditional appointments, hurried
maneuvers and other happenings detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. The appointees, it might be argued,
wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service. Needless to say, there are instances
wherein not only strict legality, but also fairness, justice and righteousness should be taken into
account.43
During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired
Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to this Court's ruling in Aytona and stated
that his proposal seeks to prevent a President, whose term is about to end, from preempting his
successor by appointing his own people to sensitive positions.

MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong
his rule indirectly by appointing people to these sensitive positions, like the commissions, the
Ombudsman, the judiciary, so he could perpetuate himself in power even beyond his term of office;
therefore foreclosing the right of his successor to make appointments to these positions. We should
realize that the term of the President is six years and under what we had voted on, there is no reelection
for him. Yet he can continue to rule the country through appointments made about the end of his term
to these sensitive positions.44

The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona's intangible
"stratagem to beat the deadline," and also on the act of "preempting the President's successor," which
shows a lack of "good faith, morality and propriety." Subject to only one exception, appointments made
during this period are thus automatically prohibited under the Constitution, regardless of the
appointee's qualifications or even of the President's motives. The period for prohibited appointments
covers two months before the elections until the end of the President's term. The Constitution, with a
specific exception, ended the President's power to appoint "two months immediately before the next
presidential elections." For an appointment to be valid, it must be made outside of the prohibited period
or, failing that, fall under the specified exception.

The dissent insists that, during the prohibited period, an appointment should be viewed in its "narrow
sense." In its narrow sense, an appointment is not a process, but is only an "executive act that the
President unequivocally exercises pursuant to his discretion."45 The dissent makes acceptance of the
appointment inconsequential. The dissent holds that an appointment is void if the appointment is made
before the ban but the transmittal and acceptance are made after the ban. However, the dissent holds
that an appointment is valid, or "efficacious," if the appointment and transmittal are made before the
ban even if the acceptance is made after the ban. In short, the dissent allows an appointment to take
effect during the ban, as long as the President signed and transmitted the appointment before the ban,
even if the appointee never received the appointment paper before the ban and accepted the
appointment only during the ban.

The dissent's view will lead to glaring absurdities. Allowing the dissent's proposal that an appointment is
complete merely upon the signing of an appointment paper and its transmittal, excluding the
appointee's acceptance from the appointment process, will lead to the absurdity that, in case of non-
acceptance, the position is considered occupied and nobody else may be appointed to it. Moreover, an
incumbent public official, appointed to another public office by the President, will automatically be
deemed to occupy the new public office and to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to accept the new appointment. This will result
in chaos in public service.

Even worse, a President who is unhappy with an incumbent public official can simply appoint him to
another public office, effectively removing him from his first office without due process. The mere
transmittal of his appointment paper will remove the public official from office without due process and
even without cause, in violation of the Constitution.

The dissent's proferred excuse (that the appointee is not alluded to in Section 15, Article VII) for its
rejection of "acceptance by the appointee" as an integral part of the appointment process ignores the
reason for the limitation of the President's power to appoint, which is .to prevent the outgoing
President from continuing to rule the country indirectly after the end of his term. The 1986
Constitutional Commission installed a definite cut-off date as an objective and unbiased marker against
which this once-in-every-six-years prohibition should be measured.

The dissent's assertion that appointment should be viewed in its narrow sense (and is not a process)
only during the prohibited period is selective and time-based, and ignores well-settled jurisprudence.
For purposes of complying with the time limit imposed by the appointment ban, the dissent' s position
cuts short the appointment process to the signing of the appointment paper and its transmittal,
excluding the receipt of the appointment paper and acceptance of the appointment by the appointee.

The President exercises only one kind of appointing power. There is no need to differentiate the exercise
of the President's appointing power outside, just before, or during the appointment ban. The
Constitution allows the President to exercise the power of appointment during the period not covered
by the appointment ban, and disallows (subject to an exception) the President from exercising the
power of appointment during the period covered by the appointment ban. The concurrence of all steps
in the appointment process is admittedly required for appointments outside the appointment ban.
There is no justification whatsoever to remove acceptance as a requirement in the appointment process
for appointments just before the start of the appointment ban, or during the appointment ban in
appointments falling within the exception. The existence of the appointment ban makes no difference in
the power of the President to appoint; it is still the same power to appoint. In fact, considering the
purpose of the appointment ban, the concurrence of all steps in the appointment process must be
strictly applied on appointments made just before or during the appointment ban.

In attempting to extricate itself from the obvious consequences of its selective application, the dissent
glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge
the functions of his new office, and thus make the appointment effective. There can never be an
instance where the appointment of an incumbent will automatically result in his resignation from his
present post and his subsequent assumption of his new position; or where the President can simply
remove an incumbent from his current office by appointing him to another one. I stress that acceptance
through oath or any positive act is still indispensable before any assumption of office may occur.46
(Emphasis added)

The dissent proposes that this Court ignore well-settled jurisprudence during the appointment ban, but
apply the same jurisprudence outside of the appointment ban.

[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with the
selection by the appointing power and ends with acceptance of the appointment by the appointee,
stands. As early as the 1949 case of Lacson v. Romero, this Court laid down the rule that acceptance by
the appointee is the last act needed to make an appointment complete. The Court reiterated this rule in
the 1989 case of Javier v. Reyes. In the 1996 case of Garces v. Court of Appeals, this Court emphasized
that acceptance by the appointee is indispensable to complete an appointment. The 1999 case of
Bermudez v. Executive Secretary, cited in the ponencia, affirms this standing rule in our jurisdiction, to
wit:

"The appointment is deemed complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render it effective."47

The dissent's assertion creates a singular exception to the well-settled doctrine that appointment is a
process that begins with the signing of the appointment paper, followed by the transmittal and receipt
of the appointment paper, and becomes complete with the acceptance of the appointment. The dissent
makes the singular exception that during the constitutionally mandated ban on appointments,
acceptance is not necessary to complete the appointment. The dissent gives no reason why this Court
should make such singular exception, which is contrary to the express provision of the Constitution
prohibiting the President from making appointments during the ban. The dissent's singular exception
will allow the President, during the ban on appointments, to remove from office incumbents without
cause by simply appointing them to another office and transmitting the appointment papers the day
before the ban begins, appointments that the incumbents cannot refuse because their acceptance is not
required during the ban. Adoption by this Court of the dissent's singular exception will certainly wreak
havoc on the civil service.
The following elements should always concur in the making of a valid (which should be understood as
both complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the
authority; (2) transmittal of the appointment paper and evidence of the transmittal; (3) a vacant
position at the time of appointment; and (4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the qualifications and none of the disqualifications.
The concurrence of all these elements should always apply, regardless of when the appointment is
made, whether outside, just before, or during the appointment ban. These steps in the appointment
process should always concur and operate as a single process. There is no valid appointment if the
process lacks even one step. And, unlike the dissent's proposal, there is no need to further distinguish
between an effective and an ineffective appointment when an appointment is valid.

Appointing Authority

The President's exercise of his power to appoint officials is provided for in the Constitution and laws.48
Discretion is an integral part in the exercise of the power of appointment.49 Considering that
appointment calls for a selection, the appointing power necessarily exercises a discretion. According to
Woodbury, J., "the choice of a person to fill an office constitutes the essence of his appointment," and
Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the
exercise of discretion." In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which
he may exercise freely according to his judgment, deciding for himself who is best qualified among those
who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x x

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee.
In other words, the choice of the appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot
at the same time limit the choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment necessarily carries the discretion of whom
to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse
such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual,
such enactment effectively eliminates the discretion of the appointing power to choose and constitutes
an irregular restriction on the power of appointment.50

Transmittal
It is not enough that the President signs the appointment paper. There should be evidence that the
President intended the appointment paper to be issued. It could happen that an appointment paper
may be dated and signed by the President months before the appointment ban, but never left his locked
drawer for the entirety of his term. Release of the appointment paper through the MRO is an
unequivocal act that signifies the President's intent of its issuance.

The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the Organization and
Functions of the Executive Office and General Matters of Procedure Therein. Initially called the Records
Division, the MRO functioned as an administrative unit of the Executive Office. Memorandum Order No.
1 assigned the following functions:

a. Receive, record and screen all incoming correspondence, telegrams, documents and papers, and

(1) Forward those of a personal and unofficial nature to the President's Private Office; and

(2) Distribute those requiring action within the Office or requiring staff work prior to presentation to the
President to the appropriate units within the Office.

b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt replies
are made and copies thereof furnished the Office.

c. Dispatch outgoing correspondence and telegrams.

d. Have custody of records of the Office, except personal papers of the President, and keep them in such
condition as to meet the documentary and reference requirements of the Office.

e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars, correspondence
and other documents affecting the Office for ready reference and use.

f. Issue certified true copies of documents on file in the Division m accordance with prevailing standard
operating procedure.
g. Keep a separate record of communications or documents of confidential nature.

h. Have custody of the Great Seal of the Republic of the Philippines.

i. Prepare and submit to the approving authority, periodic disposition schedules of non-current records
which have no historical, legal and/or claim value.

j. With the approval of the Executive Secretary, assist other offices in the installation or improvement of
their records management system; and

k. Give instructions or deliver lectures and conduct practical training to in-service trainees from other
offices and to students from educational institutions on records management.51

The Records Division was elevated to an Office in 1975, with the addition of the following functions:

1. Maintain and control vital documents and essential records to support the functions of the OP in its
day to day activities;

2. Monitor the flow of communications' from their time of receipt up to their dispatch;

3. Service the documentary, information and reference requirements of top management and action
officers of the OP, and the reference and research needs of other government agencies and the general
public;

4. Ensure the proper storage, maintenance, protection and preservation of vital and presidential
documents, and the prompt disposal of obsolete and valueless records;

5. Effect the prompt publication/dissemination of laws, presidential issuances and classified documents;

6. Provide computerized integrated records management support services for easy reference and
retrieval of data and information; and
7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum and
Testificandum served by courts and other investigating bodies.52

For purposes of verification of the appointment paper's existence and authenticity, the appointment
paper must bear the security marks (i.e., handwritten signature of the President, bar code, etc.) and
must be accompanied by a transmittal letter from the MRO.

The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO, underscores the purpose of the
release of papers through his office.

Q: What are the functions of the MRO?

A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive, record, and
screen all incoming correspondence, telegrams, documents, and papers; (2) follow up on
correspondence forwarded to entities outside the Office of the President ("OP") to assure that prompt
replies are made and copies thereof furnished the OP; (3) timely dispatch all outgoing documents and
correspondence; (4) have custody of records of the OP, except personal papers of the President, and
keep them in such condition as to meet the documentary and reference requirements of the Office; (5)
keep and maintain a filing and records system for Acts, Memoranda, Orders, Circulars, correspondence,
and other pertinent documents for ready reference and use; ( 6) issue certified copies of documents on
file as requested and in accordance with prevailing standard operating procedures; (7) maintain and
control vital documents and essential records to support the OP in its day-to-day activities; (8) monitor
the flow of communications from the time of receipt up to their dispatch; and (9) other related
functions.

xxxx

Q: As you previously mentioned, the MRO is the custodian of all documents emanating from
Malacaang pursuant to its mandate under Memorandum Order No. 1, Series of 1958. Is the MRO
required to follow a specific procedure in dispatching outgoing documents?

A: Yes.

Q: Is this procedure observed for the release of an appointment paper signed by the President? A: Yes. It
is observed for the release of the original copy of the appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy of the appointment paper
signed by the President?

A: After an appointment paper is signed by the President, the Office of the Executive Secretary (OES)
forwards the appointment paper bearing the stamp mark, barcode, and hologram of the Office of the
President, together with a transmittal letter, to the MRO for official release. Within the same day, the
MRO sends the original copy of the appointment paper together with the transmittal letter and a
delivery receipt which contains appropriate spaces for the name of the addressee, the date released,
and the date received by the addressee. Only a photocopy of the appointment is retained for the MRO's
official file.

Q: What is the basis for the process you just discussed?

A: The Service Guide of the MRO.

xxxx

Q: What is the legal basis for the issuance of the MRO Service Guide, if any?

A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of 2003 and
Memorandum Circular No. 133, Series of 2007.

xxxx

Q: Do you exercise any discretion in the release of documents forwarded to the MRO for transmittal to
various offices?

A: No. We are mandated to immediately release all documents and correspondence forwarded to us for
transmittal.

Q: If a document is forwarded by the OES to the MRO today, when is it officially released by the MRO to
the department or agency concerned?
A: The document is released within the day by the MRO if the addressee is within Metro Manila. For
example, in the case of the appointment paper of Dindo Venturanza, the OES forwarded to the MRO on
March 12, 2010 his original appointment paper dated February 23, 2010 and the transmittal letter dated
March 9, 2010 prepared by the OES. The MRO released his appointment paper on the same day or on
March 12, 2010, and was also received by the DOJ on March 12, 2010 as shown by the delivery receipt.

Q: What is the effect if a document is released by an office or department within Malacaan without
going through the MRO?

A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot
issue a certified true copy of the same because as far as the MRO is concerned, it does not exist in our
official records, hence, not an official document from the Malacaang. There is no way of verifying the
document's existence and authenticity unless the document is on file with the MRO even if the person
who claims to have in his possession a genuine document furnished to him personally by the President.
As a matter of fact, it is only the MRO which is authorized to issue certified true copies of documents
emanating from Malacaan being the official custodian and central repository of said documents. Not
even the OES can issue a certified true copy of documents prepared by them.

Q: Why do you say that, Mr. Witness?

A: Because the MRO is the so-called "gatekeeper" of the Malacaang Palace. All incoming and outgoing
documents and correspondence must pass through the MRO. As the official custodian, the MRO is in
charge of the official release of documents.

Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the appointee, is
that considered an official release by the MRO?

A: No. It is still the MRO which will furnish the original copy of the appointment paper to the appointee.
That appointment paper is, at best, only an "advanced copy."

Q: Assuming the MRO has already received the original appointment paper signed by the President
together with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit
these documents immediately, that is, on the same day?
A: Yes.

Q: Were there instances when the President, after the original appointment paper has already been
forwarded to the MRO, recalls the appointment and directs the MRO not to transmit the documents?

A: Yes, there were such instances.

Q: How about if the document was already transmitted by the MRO, was there any instance when it was
directed to recall the appointment and retrieve the documents already transmitted? A: Yes, but only in a
few instances. Sometimes, when the MRO messenger is already in transit or while he is already in the
agency or office concerned, we get a call to hold the delivery. Q: You previously outlined the procedure
governing the transmittal of original copies of appointment papers to the agency or office concerned.
Would you know if this procedure was followed by previous administrations?

A: Yes. Since I started working in the MRO in 1976, the procedure has been followed. However, it was
unusually disregarded when the appointments numbering more than 800 were made by then President
Arroyo in March 2010. The MRO did not even know about some of these appointments and we were
surprised when we learned about them in the newspapers.

Q: You mentioned that then President Arroyo appointed more than 800 persons in the month of March
alone. How were you able to determine this number?

A: My staff counted all the appointments made by then President An-oyo within the period starting
January 2009 until June 2010.

Q: What did you notice, if any, about these appointments?

A: There was a steep rise in the number of appointments made by then President Arroyo in the month
of March 2010 compared to the other months.

Q: Do you have any evidence to show this steep rise?

A: Yes. I prepared a Certification showing these statistics and the graphical representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?

A: Yes.

Q: I am showing you a Certification containing the number of presidential appointees per month since
January 2009 until June 2010, and a graphical representation thereof. Can you go over these documents
and tell us the relation of these documents to the ones you previously mentioned?

A: These are [sic] the Certification with the table of statistics I prepared after we counted the
appointments, as well as the graph thereof.

xxxx

Q: Out of the more than 800 appointees made in March 2010, how many appointment papers and
transmittal letters were released through the MRO?

A: Only 133 appointment papers were released through the MRO.

Q: In some of these transmittal letters and appointment papers which were not released through the
MRO but apparently through the OES, there were portions on the stamp of the OES which supposedly
indicated the date and time it was actually received by the agency or office concerned but were
curiously left blank, is this regular or irregular?

A: It is highly irregular.

Q: Why do you say so?

A: Usually, if the document released by the MRO, the delivery receipt attached to the transmittal letter
is filled out completely because the dates when the original appointment papers were actually received
are very material. It is a standard operating procedure for the MRO personnel to ask the person
receiving the documents to write his/her name, his signature, and the date and time when he/she
received it.
Q: So, insofar as these transmittal letters and appointment papers apparently released by the OES are
concerned, what is the actual date when the agency or the appointee concerned received it?

A: I cannot answer. There is no way of knowing when they were actually received because the date and
time were deliberately or inadvertently left blank.

Q: Can we say that the date appearing on the face of the transmittal letters or the appointment papers
is the actual date when it was released by the OES?

A: We cannot say that for sure. That is why it is very unusual that the person who received these
documents did not indicate the date and time when it was received because these details are very
important.53

The MRO's exercise of its mandate does not prohibit the President or the Executive Secretary from
giving the appointment paper directly to the appointee. However, a problem may arise if an
appointment paper is not coursed through the MRO and the appointment paper is lost or the
appointment is questioned. The appointee would then have to prove that the appointment paper was
directly given to him.

Dimaandal's counsel made this manifestation about petitioners' appointment papers and their
transmittal:

Your Honors, we respectfully request for the following markings to be made:

1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA dated
March 9, 2010 as Exhibit "2-F" for the respondents;

B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as Exhibit "2-F-l";

C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit "2-G" for the
respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E. VELICARIA-GARAFIL turned over
to the MRO on May 13, 2010 consisting of seven (7) pages as Exhibits "2-H," "2-H-l," "2-H-2," "2-H-3,"
"2-H-4," "2-H-5," and "2-H-6" respectively for the respondents;

i. The portion with the name "CHELOY E. VELICARIAGARAFIL" as "State Solicitor II, Office of the Solicitor
General" located on the first page of the letter as Exhibit "2-H-7;"

ii. The portion rubber stamped by the Office of the Executive Secretary located at the back of the last
page of the -letter showing receipt by the DOJ with blank spaces for the date and time when it was
actually received as Exhibit "2-H-8;"

B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as Exhibit "2-I" for the
respondents;

xxxx

4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8 March
2010 but turned over to the MRO only on May 6, 2010 consisting of two (2) pages as Exhibits "2-L" and
"2-L-l" respectively for the respondents;

(a) The portion with the name "EDDIE U. TAMONDONG" as "Member, representing the Private Sector,
Board of Directors" as Exhibit "2-L-2";

(b) The portion rubber stamped by the Office of the Executive Secretary located at the back of the last
page of the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces for the date and time
when it was actually received as Exhibit "2-L-3";

xxxx

8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA BESTOYONG-ROSQUITA

dated March 8, 2010 but turned over to the MRO on May 13, 2010 as Exhibit "2-T" for the respondents;

xxxx
(c) The portion with the name "FRANCISCA BESTOYONGROSQUIT A" as "Commissioner, Representing
Region I and the Cordilleras" as Exhibit "2-T-3"

(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing
receipt by Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"

xxxx

D) The Appointment Paper of FRANCISCA BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit "2-W"
for the respondents;

9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as Administrator for
Visayas, Board of Administrators, Cooperative Development Authority, Department of Finance dated
March 8, 2010 as Exhibit "2-X" for the respondents;

(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing
receipt by DOF with blank spaces for the date and time when it was actually received as Exhibit "2-X-1 ;"

B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit "2-Y" for the
respondents.54

The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the
MRO, supports Dimaandal's counsel's manifestation that the transmittal of petitioners' appointment
papers is questionable.

Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the Office of the
Solicitor General, was her appointment paper released through the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was
merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive Secretary, but the date and time as
to when it was actually received were unusually left blank.
Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of Directors of Subic
Bay Metropolitan Authority, was her [sic] appointment paper released through the MRO?

A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter, was
merely turned over to the MRO on May 6, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the National
Commission on Indigenous Peoples, representing Region 1 and the Cordilleras, was her appointment
paper released thru the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was
merely turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the
MRO was already stamped "released" by the Office of the Executive Secretary and received on March
15, 2010.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the Cooperative
Development Authority, was her appointment paper released thru the MRO?

A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter, was
merely turned over to the MRO on May 4, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MR0.55

The possession of the original appointment paper is not indispensable to authorize an appointee to
assume office. If it were indispensable, then a loss of the original appointment paper, which could be
brought about by negligence, accident, fraud, fire or theft, corresponds to a loss of the office.56
However, in case of loss of the original appointment paper, the appointment must be evidenced by a
certified true copy issued by the proper office, in this case the MRO. Vacant Position

An appointment can be made only to a vacant office. An appointment cannot be made to an occupied
office. The incumbent must first be legally removed, or his appointment validly terminated, before one
could be validly installed to succeed him.57

To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of provincial fiscal of
Negros Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac. The President
nominated and the Commission on Appointments confirmed Honorio Romero (Romero) as provincial
fiscal of Negros Oriental as Lacson's replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of Tarlac. This Court ruled that Lacson
remained as provincial fiscal of Negros Oriental, having declined the appointment as provincial fiscal of
Tarlac. There was no vacancy to which Romero could be legally appointed; hence, Romero's
appointment as provincial fiscal ofNegros Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be complete involves several
steps. First, comes the nomination by the President. Then to make that nomination valid and
permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The
last step is the acceptance thereof by the appointee by his assumption of office. The first two steps,
nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the appointment
complete and effective rests solely with the appointee himself. He may or he may not accept the
appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, "there is no
power in this country which can compel a man to accept an office." Consequently, since Lacson has
declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so,
then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created,
unless Lacson had been lawfully removed as such fiscal of Negros Oriental.59

Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those appointments to offices

that will only be vacant on or after 11 March 2010 even though the appointments are made prior to 11
March 2010. EO 2 remained faithful to the intent of Section 15, Article VII of the 1987 Constitution: the
outgoing President is prevented from continuing to rule the country indirectly after the end of his term.

Acceptance by the Qualified Appointee

Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount
to acceptance of the appointment.60 An oath of office is a qualifying requirement for a public office, a
prerequisite to the full investiture of the office.61

Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an appointment.

On 7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B.
Aldaba as the Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and approved
Javier's appointment on the same date. Javier took his oath of office on 8 November 1967, and
subsequently discharged the rights, prerogatives, and duties of the office. On 3 January 1968, while the
approval of Javier's appointment was pending with the CSC, respondent Purificacion C. Reyes (Reyes), as
the new mayor of Malolos, sent to the . CSC a letter to recall Javier's appointment. Reyes also
designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of the police department. The CSC
approved Javier's appointment as permanent on 2 May 1968, and even directed Reyes to reinstate
Javier. Reyes, on the other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's appointment prevailed over that of
Bernardo. It cannot be said that Bernardo accepted his appointment because he never assumed office
or took his oath.
Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to
avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide more
occasions to honor the Constitutional provision in the breach. The inclusion of acceptance by the
appointee as an integral part of the entire appointment process prevents the abuse of the Presidential
power to appoint. It is relatively easy to antedate appointment papers and make it appear that they
were issued prior to the appointment ban, but it is more difficult to simulate the entire appointment
process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot
prove with certainty that their appointment papers were transmitted before the appointment ban took
effect. On the other hand, petitioners admit that they took their oaths of office during the appointment
ban.

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

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

SO ORDERED.

in several government offices. In violation of ban on midnight appointments in Section 15, Article VII of
the 1987 Constitution reads: Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety. Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for
valid appointments and the next day, 11 March 2010, was the start of the ban on midnight
appointments. To summarize, the pertinent dates for each petitioner are as follows: G.R. No. Date of
Appointment Letter Date of Transmittal Letter Date of Receipt by MRO Date of Oath of Office
Assumption of Office 203372 (Atty. Velicaria-Garafil) 5 March 2010 8 March 2010 13 May 2010 22
March 2010 6 April 2010 206290 (Atty. Venturanza) 23 February 2010 9 March 2010 12 March 2010 15
March 2010 15 March 2010 209138 (Villanueva) 3 March 2010 4 May 2010 13 April 2010 209138
(Rosquita) 5 March 2010 13 May 2010 18 March 2010 212030 (Atty. Tamondong) 1 March 2010 25
March 2010 and 6 July 2010 On 30 June 2010, President Benigno S. Aquino III (President Aquino) took
his oath of office as President of the Republic of the Philippines. On 30 July 2010, President Aquino
issued EO 2 recalling, withdrawing, and revoking appointments issued by President Macapagal-Arroyo
which violated the constitutional ban on midnight appointments. In separate petitions, petitioners
oppose the said Executive Order. On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor
General (Sol. Gen. Cadiz). Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform the
officers and employees affected by EO 2 that they were terminated from service effective the next day.
There were several petitions

31

and motions for intervention

32

that challenged the constitutionality of EO 2. On 31 January 2012, this Court issued a Resolution
referring the petitions, motions for intervention, as well as various letters, to the CA for further
proceedings, including the reception and assessment of the evidence from all parties. This Court gave
the CA the authority to resolve all pending matters and applications, and to decide the issues as if these
cases were originally filed with the CA. The CA promulgated separate Decisions for the petitions. The CA
consistently ruled that EO 2 is constitutional. The CA, however, issued different rulings as to the

evaluation of the circumstances of petitioners' appointments. In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should consider the circumstances of their appointments. In the
cases of Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated that the revocation of their
appointments was proper because they were midnight appointees. ISSUE: Whether or not the
appointments of the petitioners in their respective positions are valid HELD: In order for a valid
appoitment exist the following elements should always concur: (1) authority to appoint and evidence of
the exercise of the authority; (2) transmittal of the appointment paper and evidence of the transmittal;
(3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and
acceptance of the appointment by the appointee who possesses all the qualifications and none of the
disqualifications. The concurrence of all these elements should always apply, regardless of when the
appointment is made, whether outside, just before, or during the appointment ban. These steps in the
appointment process should always concur and operate as a single process. There is no valid
appointment if the process lacks even one step. And, unlike the dissent's proposal, there is no need to
further distinguish between an effective and an ineffective appointment when an appointment is valid.
Appointing Authority The President's exercise of his power to appoint officials is provided for in the
Constitution and laws. Discretion is an integral part in the exercise of the power of appointment.
Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person to fill an office constitutes the essence of
his appointment," and Mr. Justice Malcolm adds that an "appointment to office is intrinsically an
executive act involving the exercise of discretion." In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court we held: The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power x x x x Indeed, the power of choice is the heart of
the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a
ministerial act of issuing appointment papers to the appointee. In other words, the choice of the
appointee is a fundamental component of the appointing power. Transmittal It is not enough that the
President signs the appointment paper. There should be evidence that the President intended the
appointment paper to be issued. It could happen that an appointment paper may be dated and signed
by the President months before the appointment ban, but never left his locked drawer for the entirety
of his term. Release of the appointment paper through the MRO is an unequivocal act that signifies the
President's intent of its issuance.

The appointment to a government post like that of provincial fiscal to be complete involves several
steps. First, comes the nomination by the President. Then to make that nomination valid and
permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The
last step is the acceptance thereof by the appointee by his assumption of office. The first two steps,
nomination and confirmation, constitute a mere offer of a post. Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount
to acceptance of the appointment. An oath of office is a qualifying requirement for a public office, a
prerequisite to the full investiture of the office. Petitioners have failed to show compliance with all four
elements of a valid appointment. They cannot prove with certainty that their appointment papers were
transmitted before the appointment ban took effect. On the other hand, petitioners admit that they
took their oaths of office during the appointment ban. Petitioners have failed to raise any valid ground
for the Court to declare EO 2, or any part of it, unconstitutional. Consequently, EO 2 remains valid and
constitutional.
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 196231 January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.

OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M.
AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS,
ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG,
Respondents.

x-----------------------x

G.R. No. 196232

WENDELL BARRERAS-SULIT Petitioner,

vs.

ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN THEIR
CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL AFFAIRS, Respondents.

DECISION

BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect
of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the penalty
of dismissal.

Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings
against her, solely questioned the jurisdiction of the OP to subject her to disciplinary proceedings. The
Court affirmed the continuation of the proceedings against her after upholding the constitutionality of
Section 8(2) of RA No. 6770.

The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-J-460 is
REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension effective immediately, even as the Office of the
Ombudsman is directed to proceed with the investigation in connection with the above case against
petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. ll-B-003 against Special
Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the
Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of
1989.3

In view of the Courts ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).

We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.

I. ANTECEDENTS
A. Gonzales petition (G.R. No. 196231)

a. Factual antecedents

On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City Prosecutors Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4

On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge for
grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et
al. based on the same allegations made by Kalaw before the PNP-IAS.5

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendozas case to his office. The Office
of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order.7

Pending Gonzales action on Mendoza, et al.s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaws complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal
without prejudice of the administrative case against Mendoza, et al. for Kalaws failure to prosecute.9

On February 16, 2009, after preparing a draft decision on Mendoza, et al.s case, Gonzales forwarded
the entire records to the Office of then Ombudsman Merceditas Gutierrez for her review.10 In his draft
decision, Gonzales found Mendoza, et al. guilty of grave misconduct and imposed on them the penalty
of dismissal from the service.11

Mendoza, et al. received a copy of the Ombudsmans decision that approved Gonzales
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13

On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.s case records to the
Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009, the case
was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for review and
recommendation.14

GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales office
on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case records,
on May 6, 2010 for the final approval by the Ombudsman.16

On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board as
hostages. While the government exerted earnest attempts to peacefully resolve the hostage-taking, it
ended tragically, resulting in the deaths of Mendoza and several others on board the hijacked bus.

In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the incident.
The two departments issued Joint Department Order No. 01-2010, creating an Incident Investigation
and Review Committee (IIRC).

In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable for
their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC stated
that the Ombudsman and Gonzales failure to promptly resolve Mendozas motion for reconsideration,
"without justification and despite repeated pleas" xxx "precipitated the desperate resort to hostage-
taking."18 The IIRC recommended the referral of its findings to the OP for further determination of
possible administrative offenses and for the initiation of the proper administrative proceedings.19

Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect of
Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20

b. The OP ruling

On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the service.21
According to the OP, "the inordinate and unjustified delay in the resolution of [Mendozas] Motion for
Reconsideration [that spanned for nine (9) long months] xxx amounted to gross neglect of duty" and
"constituted a flagrant disregard of the Office of the Ombudsmans own Rules of Procedure."22
c. The Petition

Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative
disciplinary jurisdiction over the Deputy Ombudsman.

On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27,
2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the Office
of the Ombudsman for final approval. Since the draft order on Mendozas motion for reconsideration
had to undergo different levels of preparation, review and approval, the period it took to resolve the
motion could not be unjustified, since he himself acted on the draft order only within nine (9) calendars
days from his receipt of the order.23

B. Sulits petition (G.R. No. 196232)

In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others,
before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's urgent petition for
bail on January 7, 2010, in view of the strength of the prosecutions evidence against Garcia.

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered
into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i) withdraw his
plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense of indirect
bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and enter a guilty plea
to the lesser offense of facilitating money laundering. In exchange, he would convey to the government
his ownership, rights and other interests over the real and personal properties enumerated in the
Agreement and the bank deposits alleged in the information.25

The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties submitted Joint
Motion for Approval.27

The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust grounds for removal under Section 8(2) of RA No. 6770.28 The
Committee recommended to the President the dismissal from the service of Sulit and the filing of
appropriate charges against her deputies and assistants before the appropriate government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning the OPs jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.

II. COURTS RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales petition and to
declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As
the full explanation of the Courts vote describes below, this conclusion does not apply to Sulit as the
grant of independence is solely with respect to the Office of the Ombudsman which does not include the
Office of the Special Prosecutor under the Constitution. The prevailing ruling on this latter point is
embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor Leonen).

A. Preliminary considerations:

a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the
Courts September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration of
our ruling reinstating Gonzales.

This omission, however, poses no obstacle for the Courts review of its ruling on the whole case since a
serious constitutional question has been raised and is one of the underlying bases for the validity or
invalidity of the presidential action. If the President does not have any constitutional authority to
discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any ruling on the
legal correctness of the OPs decision on the merits will be an empty one.

In other words, since the validity of the OPs decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case including the
constitutional issue remains alive for the Courts consideration on motion for reconsideration.

b. The justiciability of the constitutional

issue raised in the petitions

We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable not
a political question. A justiciable question is one which is inherently susceptible of being decided on
grounds recognized by law,31 as where the court finds that there are constitutionally-imposed limits on
the exercise of the powers conferred on a political branch of the government.32

In resolving the petitions, we do not inquire into the wisdom of the Congress choice to grant concurrent
disciplinary authority to the President. Our inquiry is limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core constitutional principle
of the independence of the Office of the Ombudsman as expressed in Section 5, Art. XI of the
Constitution.

To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA No.
6770 grants where the Constitution confers none. When exercised authority is drawn from a vacuum,
more so when the authority runs counter to a core constitutional principle and constitutional intents,
the Court is duty-bound to intervene under the powers and duties granted and imposed on it by Article
VIII of the Constitution.

B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as
the people's medium for airing grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of their function as government critic.33

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No.
1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known
as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously vested
in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive
authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution of these cases.34

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and the standard of
accountability in public service under Section 1, Article XI of the 1987 Constitution. These provisions
read:

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with
patriotism and justice, and lead modest lives.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be
the "protector of the people" against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau.36 This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:

Section 21. Official Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary. [emphasis ours, italics
supplied]

As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No. 6770,
if these actions are reasonably in line with its official function and consistent with the law and the
Constitution.38
The Ombudsmans broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad powers, the Constitution saw it fit to insulate the
Office of the Ombudsman from the pressures and influence of officialdom and partisan politics and from
fear of external reprisal by making it an "independent" office. Section 5,

Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
[emphasis ours]

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with
its daunting task of enforcing accountability of public officers.40

b. "Independence" of constitutional bodies vis-a-vis the Ombudsmans independence

Under the Constitution, several constitutional bodies have been expressly labeled as "independent."41
The extent of the independence enjoyed by these constitutional bodies however varies and is to be
interpreted with two significant considerations in mind: first, the functions performed or the powers
involved in a given case; and second, consistency of any allowable interference to these powers and
functions, with the principle of checks and balances.

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics they do not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these "independent" bodies be insulated from political
pressure to the extent that the absence of "independence" would result in the impairment of their core
functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the interference
that the President may bring and maintained that the independence and the flexibility of the Judiciary,
the Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

The constitutional deliberations explain the Constitutional Commissions need for independence. In the
deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the tentacles of politics.43 In a similar manner,
the deliberations of the 1987 Constitution on the Commission on Audit highlighted the developments in
the past Constitutions geared towards insulating the Commission on Audit from political pressure.44

Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission independent
from the executive branch and other political leaders:

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our
concept, he can advise us on how to reconcile his position with ours. The position of the committee is
that we need a body that would be able to work and cooperate with the executive because the
Commissioner is right. Many of the services needed by this commission would need not only the
cooperation of the executive branch of the government but also of the judicial branch of government.
This is going to be a permanent constitutional commission over time. We also want a commission to
function even under the worst circumstance when the executive may not be very cooperative. However,
the question in our mind is: Can it still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this. We realize the need for coordination
and cooperation. We also would like to build in some safeguards that it will not be rendered useless by
an uncooperative executive.

xxxx
MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go to a
country, the most credible organizations are independent human rights bodies. Very often these are
private organizations, many of which are prosecuted, such as those we find in many countries in Latin
America. In fact, what we are proposing is an independent body on human rights, which would provide
governments with credibility precisely because it is independent of the present administration.
Whatever it says on the human rights situation will be credible because it is not subject to pressure or
control from the present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of each
one is protected, then we shall have a body that could stand up to any power, to defend the rights of
individuals against arrest, unfair trial, and so on.45

These deliberative considerations abundantly show that the independent constitutional commissions
have been consistently intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents presidential
interference.

In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President, even
if they discharge functions that are executive in nature. The Court declared as unconstitutional the
Presidents act of temporarily appointing the respondent in that case as Acting Chairman of the Comelec
"however well-meaning"47 it might have been.

In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners of
the independent Commission on Human Rights could not be placed under the discretionary power of
the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent as the Commission on Human Rights and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with independence
and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the
pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of the constitutional mandate of independence of
this body. Obviously, the mere review of rules places considerably less pressure on a constitutional body
than the Executives power to discipline and remove key officials of the Office of the Ombudsman, yet
the Court struck down the law as unconstitutional.

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior but is
similar in degree and kind to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning.50

c. Section 8(2) of RA No. 6770

vesting disciplinary authority

in the President over the

Deputy Ombudsman violates

the independence of the Office

of the Ombudsman and is thus

unconstitutional

Our discussions, particularly the Courts expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution,
on the other, in protecting the independence of the Constitutional Commissions, speak for themselves
as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the independence of the
Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsmans disciplinary authority, cannot but seriously place at risk the independence of the Office of
the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its
key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately,
intrusion upon the constitutionally-granted independence is what Section 8(2) of RA No. 6770 exactly
did. By so doing, the law directly collided not only with the independence that the Constitution
guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances
that the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected
to place her complete trust in her subordinate officials who are not as independent as she is, if only
because they are subject to pressures and controls external to her Office. This need for complete trust is
true in an ideal setting and truer still in a young democracy like the Philippines where graft and
corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy Ombudsman) should be declared void.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed his
apprehension that any form of presidential control over the Office of the Ombudsman would diminish
its independence.51 The following exchanges between Commissioners Blas Ople and Christian Monsod
further reveal the constitutional intent to keep the Office of the Ombudsman independent from the
President:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment xxx,
by way of designating the office of the Ombudsman as a constitutional arm for good government,
efficiency of the public service and the integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be accountable to no one on the pretext
that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee and I believe it still is that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the culprits
in inefficiency, injustice and impropriety are in the executive department. Therefore, as we saw the
wrong implementation of the Tanodbayan which was under the tremendous influence of the President,
it was an ineffectual body and was reduced to the function of a special fiscal. The whole purpose of our
proposal is precisely to separate those functions and to produce a vehicle that will give true meaning to
the concept of Ombudsman. Therefore, we regret that we cannot accept the proposition.52

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the Office of the Ombudsman is given the duty
to adjudicate on the integrity and competence of the very persons who can remove or suspend its
members. Equally relevant is the impression that would be given to the public if the rule were
otherwise. A complainant with a grievance against a high-ranking official of the Executive, who appears
to enjoy the Presidents favor, would be discouraged from approaching the Ombudsman with his
complaint; the complainants impression (even if misplaced), that the Ombudsman would be susceptible
to political pressure, cannot be avoided. To be sure, such an impression would erode the constitutional
intent of creating an Office of the Ombudsman as champion of the people against corruption and
bureaucracy.

d. The mutual-protection argument for

crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an
external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place. On
the one hand, the Ombudsmans Deputies cannot protect the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand, the Ombudsmans attempt to cover up the
misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt
can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose
judges and employees are not subject to the disciplinary authority of the Ombudsman and whose
neutrality would be less questionable. The Members of the Court themselves may be subjected to the
impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At
the same time, the Court remains consistent with its established rulings - that the independence granted
to the Constitutional Commissions bars any undue interference from either the Executive or Congress
and is in full accord with constitutional intent.

e. Congress power determines the

manner and causes for the removal

of non-impeachable officers is not a

carte blanch authority

Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the modes
of removal from office of all public officers and employees except the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman,
who are all impeachable officials.

The intent of the framers of the Constitution in providing that "[a]ll other public officers and employees
may be removed from office as provided by law, but not by impeachment" in the second sentence of
Section 2, Article XI is to prevent Congress from extending the more stringent rule of "removal only by
impeachment" to favored public officers.54 Understandably so, impeachment is the most difficult and
cumbersome mode of removing a public officer from office. It is, by its nature, a sui generis politico-legal
process55 that signals the need for a judicious and careful handling as shown by the process required to
initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the limited grounds for
impeachment;58 the defined instrumentality given the power to try impeachment cases;59 and the
number of votes required for a finding of guilt.60 All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.

On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects of
impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of prosecution
alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-benefit analysis of
adopting impeachment as a mechanism, limiting Congress power to otherwise legislate on the matter is
far more advantageous to the country.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be
read. Contrary to the implied view of the minority, in no way can this provision be regarded as blanket
authority for Congress to provide for any ground of removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must still be consistent with constitutional
guarantees and principles, namely: the right to procedural and substantive due process; the
constitutional guarantee of security of tenure; the principle of separation of powers; and the principle of
checks and balances.62

In short, the authority granted by the Constitution to Congress to provide for the manner and cause of
removal of all other public officers and employees does not mean that Congress can ignore the basic
principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is not a
blanket authority for Congress to repose it on whomsoever Congress chooses without running afoul of
the independence enjoyed by the Office of the Ombudsman and without disrupting the delicate check
and balance mechanism under the Constitution. Properly viewed from this perspective, the core
constitutional principle of independence is observed and any possible absurdity resulting from a
contrary interpretation is avoided. In other words, while the Constitution itself vested Congress with the
power to determine the manner and cause of removal of all non-impeachable officials, this power must
be interpreted consistent with the core constitutional principle of independence of the Office of the
Ombudsman. Our observation in Macalintal v. Comelec63 is apt:

The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended
as a measure of protection for the Deputy Ombudsman and Special Prosecutor since these grounds
are not intended to cover all kinds of official wrongdoing and plain errors of judgment - this argument
seriously overlooks the erosion of the independence of the Office of the Ombudsman that it creates.
The mere fact that a statutorily-created sword of Damocles hangs over the Deputy Ombudsmans head,
by itself, opens up all the channels for external pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very office he is to check for excesses and abuses defeats
the very purpose of granting independence to the Office of the Ombudsman.

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the Presidents power of removal is limited to specified grounds are dismally inadequate when balanced
with the constitutional principle of independence. The mere filing of an administrative case against the
Deputy Ombudsman and the Special Prosecutor before the OP can already result in their suspension and
can interrupt the performance of their functions, in violation of Section 12, Article XI of the Constitution.
With only one term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor, if removable
by the President, can be reduced to the very same ineffective Office of the Ombudsman that the
framers had foreseen and carefully tried to avoid by making these offices independent constitutional
bodies.

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of
public trust is patently erroneous. The OPs decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at a minimum, a
measure of protection of the independence of the Office of the Ombudsman.

C. The Deputy Ombudsman: The Dismissal Issue

a. The Office of the Presidents

finding of gross negligence

has no legal and factual leg to

stand on

The OPs decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The assailed
Decision of the OP reads:

Upon consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman
himself, and other documentary evidence gathered, this Office finds that the inordinate and unjustified
delay in the resolution of Captain Mendozas Motion for Reconsideration timely filed on 5 November
2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of official duty.64

b. No gross neglect of duty or inefficiency

Let us again briefly recall the facts.

1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration;66

2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and make his
recommendation for the appropriate action, received the records of the case;

3. April 5, 2010 GIPO Garcia released a draft order to be reviewed by his immediate superior, Dir.
Cecilio;68

4. April 27, 2010 Dir. Cecilio signed and forwarded to Gonzales this draft order;69

5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) Gonzales endorsed the
draft order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be affected.
In the case of public officials, there is gross negligence when a breach of duty is flagrant and palpable.71

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of 1990,
as amended) in ruling that Gonzales should have acted on Mendozas Motion for Reconsideration within
five days:

Section 8. Motion for reconsideration or reinvestigation: Grounds Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest
of the movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since
he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer
tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed decision, the period for resolving the case does
not cover the period within which it should be reviewed:

Section 6. Rendition of decision. Not later than thirty (30) days after the case is declared submitted for
resolution, the Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by the
Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low ranking
public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon approval,
copies thereof shall be served upon the parties and the head of the office or agency of which the
respondent is an official or employee for his information and compliance with the appropriate directive
contained therein. [italics and emphases supplied]

Thus, the OPs ruling that Gonzales had been grossly negligent for taking nine days, instead of five days,
to review a case was totally baseless.

c. No actionable failure to supervise subordinates

The OPs claims that Gonzales could have supervised his subordinates to promptly act on Mendozas
motion and apprised the Tanodbayan of the urgency of resolving the same are similarly groundless.

The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases that
involve the potential loss of employment of many other public employees. We cannot conclusively state,
as the OP appears to suggest, that Mendozas case should have been prioritized over other similar cases.

The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSGs observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.

Equally important, the constitutional guarantee of "speedy disposition of cases" before, among others,
quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus, the delay,
if any, must be measured in this objective constitutional sense. Unfortunately, because of the very
statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps, "practical"
considerations got the better of what is legal and constitutional.

The facts do not show that Gonzales subordinates had in any way been grossly negligent in their work.
While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the
first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four months,
given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsmans constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases something the Court may be hard put to
justify.

d. No undue interest

The OP also found Gonzales guilty of showing undue interest in Mendozas case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.

The fact that Gonzales had Mendozas case endorsed to his office lies within his mandate, even if it were
based merely on the request of the alleged victims father. The Constitution empowers the Ombudsman
and her Deputies to act promptly on complaints filed in any form or manner against any public official or
employee of the government.78 This provision is echoed by Section 13 of RA No. 6770,79 and by Section
3, Rule III of Administrative Order No. 7, series of 1990, as amended.80

Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officers recommendations, the finding of guilt
on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that they
had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until the
following morning in the police precinct. The next morning, Kalaw was allowed to leave the precinct
despite his failure to show a valid license and based merely on his promise to return with the proper
documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et al. irregularly
acted in apprehending Kalaw, since the proper procedure for the apprehension of traffic violators would
be to give them a ticket and to file a case, when appropriate.82

Lastly, we cannot deduce undue interest simply because Gonzales decision differs from the decision of
the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot tie the hands of
any judicial or quasi-judicial body by ruling that it should always concur with the decisions of other
judicial or quasi-judicial bodies which may have also taken cognizance of the case. To do so in the case
of a Deputy Ombudsman would be repugnant to the independence that our Constitution has specifically
granted to this office and would nullify the very purpose for which it was created.
e. Penalty of dismissal totally

incommensurate with established facts

Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by the
OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be held liable
for our own misdeeds; we can be made to account only for lapses in our responsibilities. It is notable
that of all the officers, it was Gonzales who took the least time nine days followed by Cecilio, who
took 21 days; Garcia the writer of the draft took less than four months, and the Ombudsman, less
than four months until the kidnapping incident rendered Mendozas motion moot.

In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does not
preclude the Ombudsman from looking into any other possible administrative liability of Gonzales under
existing Civil Service laws, rules and regulations.

D. The Special Prosecutor: The Constitutional Issue

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan
at the time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the
composition of the independent Office of the Ombudsman under the 1987 Constitution does not
textually include the Special Prosecutor, the weight of the foregoing discussions on the
unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the

Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded
in jurisprudence.

Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978,
President Ferdinand Marcos enacted PD No. 1487.85

Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive authority"
to conduct preliminary investigation and to prosecute cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also authorized
the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or employee of
Department of Justice or any Bureau or Office under the executive supervision thereof" to assist the
Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away from
it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the Chief
Special Prosecutor" under the Tanodbayans control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the earlier
decree, the law also empowered the Tanodbayan to appoint Special Investigators and subordinate
personnel and/or to detail to the Office of the CSP any public officer or employees who "shall be under
the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630 further amended
the earlier decrees by transferring the powers previously vested in the Special Prosecutor directly to the
Tanodbayan himself.92

This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers as
now94 or hereafter may be provided by law."95

Other than the Ombudsmans Deputies, the Ombudsman shall appoint all other officials and employees
of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution provides that the
Ombudsman may exercise "such other powers or perform such functions or duties as may be provided
by law." Pursuant to this constitutional command, Congress enacted RA No. 6770 to provide for the
functional and structural organization of the Office of the Ombudsman and the extent of its disciplinary
authority.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the
authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of nominees
prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law requires that the
vacancy be filled within three (3) months from occurrence.97

The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and qualifications,100 rank
and salary are likewise the same.101 The requirement on disclosure102 is imposed on the Ombudsman,
the Deputies and the Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman, the
Overall Deputy cannot assume the role of Acting Ombudsman; the President may designate any of the
Deputies or the Special Prosecutor as Acting Ombudsman.103 The power of the Ombudsman and his or
her deputies to require other government agencies to render assistance to the Office of the
Ombudsman is likewise enjoyed by the Special Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both
under the 1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the
Deputy Ombudsman from the disciplinary authority of the OP and yet expose the Special Prosecutor to
the same ills that a grant of independence to the Office of the Ombudsman was designed for.

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic
component of the Office of the Ombudsman and by granting the Ombudsman control and supervision
over that office.105 This power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit.1wphi1
Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one
who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include
investigation and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases
within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking
executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and removal powers
of the President, whose own alter egos and officials in the Executive Department are subject to the
prosecutorial authority of the Special Prosecutor, would seriously place the independence of the Office
of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the
Office of the Ombudsman, the role it performs as an organic component of that Office militates against
a differential treatment between the Ombudsmans Deputies, on one hand, and the Special Prosecutor
himself, on the other. What is true for the Ombudsman must be equally true, not only for her Deputies
but, also for other lesser officials of that Office who act directly as agents of the Ombudsman herself in
the performance of her duties.

In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom,
the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is,
in fact, separate and distinct from the latter. In debunking that argument, the Court said:

Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the
intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under
the Office of the President. Xxx

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be
henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its
powers as now or hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that
Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0. 1630 or
grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8,
Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform
functions or duties as may be provided by law," it is indubitable then that Congress has the power to
place the Office of the Special Prosecutor under the Office of the Ombudsman.107

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par
with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned,
and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September
4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2)
of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to
be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence
the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This
ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III
unnecessary, but is without prejudice to the power of the Ombudsman to conduct an administrative
investigation, if warranted, into the possible administrative liability of Deputy Ombudsman Emilio
Gonzales III under pertinent Civil Service laws, rules and regulations.

SO ORDERED.
January 2014 Philippine Supreme Court Rulings on Political Law

Posted on February 14, 2014 by Philbert E. Varona Posted in Constitutional Law, Philippines -
Cases, Philippines - Law

Here are select January 2014 rulings of the Supreme Court of the Philippines on political law:

Absence of motion of reconsideration; effect of. The omission of the filing of a motion for
reconsideration poses no obstacle for the Courts review of its ruling on the whole case since a serious
constitutional question has been raised and is one of the underlying bases for the validity or invalidity of
the presidential action. If the President does not have any constitutional authority to discipline a Deputy
Ombudsman and/or a Special Prosecutor in the first place, then any ruling on the legal correctness of
the OPs decision on the merits will be an empty one. In other words, since the validity of the OPs
decision on the merits of the dismissal is inextricably anchored on the final and correct ruling on the
constitutional issue, the whole case including the constitutional issue remains alive for the Courts
consideration on motion for reconsideration. Emilio A. Gonzales III v. Office of the President, etc., et
al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January
28, 2014.

Congress; power to determine modes of removal from office of public officers; must be consistent with
the core constitutional principle of independence of the Office of the Ombudsman. The intent of the
framers of the Constitution in providing that all other public officers and employees may be removed
from office as provided by law, but not by impeachment in the second sentence of Section 2, Article XI
is to prevent Congress from extending the more stringent rule of removal only by impeachment to
favoured public officers. Contrary to the implied view of the minority, in no way can this provision be
regarded as blanket authority for Congress to provide for any ground of removal it deems fit. While the
manner and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due process;
the constitutional guarantee of security of tenure; the principle of separation of powers; and the
principle of checks and balances. The authority granted by the Constitution to Congress to provide for
the manner and cause of removal of all other public officers and employees does not mean that
Congress can ignore the basic principles and precepts established by the Constitution. Emilio A.
Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et
al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.

Constitutional bodies; concept of independence. The independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares certain characteristics they do not owe
their existence to any act of Congress, but are created by the Constitution itself; additionally, they all
enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these
independent bodies be insulated from political pressure to the extent that the absence of
independence would result in the impairment of their core functions. The deliberative considerations
abundantly show that the independent constitutional commissions have been consistently intended by
the framers to be independent from executive control or supervision or any form of political influence.
At least insofar as these bodies are concerned, jurisprudence is not scarce on how the independence
granted to these bodies prevents presidential interference. Emilio A. Gonzales III v. Office of the
President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R.
No. 196232, January 28, 2014.

Gross negligence; concept of; not present when Deputy Ombudsman reviews a case for nine days. Gross
negligence refers to negligence characterized by the want of even the slightest care, acting or omitting
to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with a
conscious indifference to consequences insofar as other persons may be affected. In case of public
officials, there is gross negligence when a breach of duty is flagrant and palpable. The Deputy
Ombudsman cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. The OPs ruling that Gonzales had been grossly negligent for taking
nine days, instead of five days as required for Hearing Officers, is totally baseless.Emilio A. Gonzales III v.
Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R. No.
196231/G.R. No. 196232, January 28, 2014.

Impeachment; concept of. Impeachment is the most difficult and cumbersome mode of removing a
public officer from office. It is, by nature, a sui generis politico-legal process that signals the need for a
judicious and careful handling as shown by the process required to initiate the proceeding; the one-year
limitation or bar for its initiation; the limited grounds for impeachment; the defined instrumentality
given the power to try impeachment cases; and the number of votes required for a finding of guilt.
Emilio A. Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N.
Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.

Judicial power; issuance of protection orders is in pursuance of the Courts authority to settle justiciable
controversies or disputes involving rights that are enforceable and demandable before the courts of
justice or the redress of wrongs for violations of such rights. The provision in R.A. 9262 allowing the
issuance of protection orders is not an invalid delegation of legislative power to the court and to
barangay officials to issue protection orders. Section 2 of Article VIII of the 1987 Constitution provides
that the Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof. Hence, the primary judge of the necessity, adequacy, wisdom, reasonableness and
expediency of any law is primarily the function of the legislature. The act of Congress entrusting us with
the issuance of protection orders is in pursuance of our authority to settle justiciable controversies or
disputes involving rights that are enforceable and demandable before the courts of justice or the redress
of wrongs for violations of such rights. Ralph P. Tua v. Hon. Cesar A. Mangrobang, Presiding Judge,
Branch 22, RTC, Imus, Cavite; and Rossan Honrado-Tua, G.R. No. 170701. January 22, 2014.
Just compensation; determination of just compensation is fundamentally a judicial function. In the
exercise of the Courts essentially judicial function of determining just compensation, the RTC-SACs are
not granted unlimited discretion and must consider and apply the enumerated factors in R.A. No. 6657
and the DAR formula (in AO 5-98) that reflect these factors. These factors and formula provide the
uniform framework or structure for the computation of the just compensation for a property subject to
agrarian reform. When acting within the parameters set by the law itself, the RTC-SACs, however, are
not strictly bound to apply the DAR formula to its minute detail, particularly when faced with situations
that do not warrant the formulas strict application; they may, in the exercise of their discretion, relax
the formulas application to fit the factual situations before them. They must, however, clearly explain
the reason for any deviation from the factors and formula that the law and the rules have provided.Land
Bank of the Philippines v. Yatco Agricultural Enterprises, G.R. No. 172551, January 15, 2014.

Just compensation; fair market value of the expropriated property is determined as of the time of
taking. The time of taking refers to that time when the State deprived the landowner of the use and
benefit of his property, as when the State acquires title to the property or as of the filing of the
complaint, per Section 4, Rule 67 of the Rules of Court. Land Bank of the Philippines v. Yatco Agricultural
Enterprises, G.R. No. 172551, January 15, 2014.

Justiciable question; definition of. A justiciable question is one which is inherently susceptible of being
decided on grounds recognized by law, as where the court finds that there are constitutionally-imposed
limits on the exercise of the powers conferred on a political branch of the government. Our inquiry is
limited to whether such statutory grant of disciplinary authority to the President violates the
Constitution, particularly the core constitutional principle of the independence of the Office of the
Ombudsman. Emilio A. Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty.
Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.

Ombudsman; investigative and disciplinary powers; scope. The Ombudsmans broad investigative and
disciplinary powers include all acts of malfeasance, misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive officers, during their tenure. To support these
broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures
and influences of officialdom and partisan politics and from fear of external reprisal by making it an
independent office. Emilio A. Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v.
Atty. Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.

Ombudsman; powers and functions. Under Section 12, Article XI of the 1987 Constitution, the Office of
the Ombudsman is envisioned to be the protector of the people against the inept, abusive, and
corrupt in the Government, to function essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to directly
check and guard against the ills, abuses, and excesses of the bureaucracy. As the Ombudsman is
expected to be an activist watchman, the Court has upheld its actions, although not squarely falling
under the broad powers granted it by the Constitution and by R.A. No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and the Constitution. Emilio A.
Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et
al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.

Private lands acquired for agrarian reform; primary jurisdiction. The Land Bank of the Philippines is
primarily charged with determining land valuation and compensation for all private lands acquired for
agrarian reform purposes. But this determination is only preliminary. The landowner may still take the
matter of just compensation to the court for final adjudication. Thus, we clarify and reiterate: the
original and exclusive jurisdiction over all petitions for the determination of just compensation under
R.A. No. 6657 rests with the RTC-SAC. But, in its determination, the RTC-SAC must take into
consideration the factors laid down by law and the pertinent DAR regulations. Land Bank of the
Philippines v. Yatco Agricultural Enterprises, G.R. No. 172551, January 15, 2014.

Public officer; discourtesy in the performance of official duties. As a public officer and trustee for the
public, it is the ever existing responsibility of respondent sheriff to demonstrate courtesy and civility in
his official actuations with the public. Based on the transcript of the altercation, it is readily apparent
that respondent has indeed been remiss in the duty of observing courtesy in serving the public. He
should have exercised restraint in dealing with the complainant, instead of allowing the quarrel to
escalate into a hostile encounter. The balm of a clean conscience should have been sufficient to relieve
any hurt or harm respondent felt from complainants criticisms in the performance of his duties. On the
contrary, respondents demeanor tarnished the image not only of his office but that of the judiciary as a
whole, exposing him to disciplinary measure. Atty. Virgillo P. Alconera v. Alfredo T. Pallanan, A.M. No. P-
12-3069, January 20, 2014.

Public officer; making untruthful statements. The charge of making untruthful statements must fail.
While the statements mentioned in respondents complaint-affidavit were not reflected in the transcript
submitted by the complainant, this actuality is not conclusive evidence that such event did not take
place. As claimed by respondent, complainants clerk was only able to record a part of the argument.
We cannot then discount the probability that there is more to the argument than what was caught on
video and there remains the possibility that what respondent narrated and what complainant recorded
both actually transpired. Atty. Virgillo P. Alconera v. Alfredo T. Pallanan, A.M. No. P-12-3069, January 20,
2014.

Section 8(2) of RA 6770; constitutional; the Office of the Special Prosecutor is not constitutionally within
the Office of the Ombudsman; not entitled to the independence the Office of the Ombudsman enjoys
under the Constitution. The Court resolved to maintain the validity of Section 8(2) of R.A. No. 6770
insofar as the Special Prosecutor is concerned. The Court does not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the
independence the latter enjoys under the Constitution. Emilio A. Gonzales III v. Office of the President,
etc., et al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232,
January 28, 2014.

Section 8(2) of RA No. 6770; unconstitutional; vesting of disciplinary authority in the President over the
Deputy Ombudsman; violation of the independence of the Ombudsman. In more concrete terms, we
rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own
alter egos and officials in the Executive department are subject to the Ombudsmans disciplinary
authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself.
Section 8(2) of R.A. No. 6770 intruded upon the constitutionally-granted independence of the Office of
the Ombudsman. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and
balances that the creation of an Ombudsman office seeks to revitalize. What is true for the Ombudsman
must equally and necessarily be true for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her
subordinate officials who are not as independent as she is, if only because they are subject to pressures
and controls external to her Office. This need for complete trust is true in an ideal setting and truer still
in a young democracy like the Philippines where graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of R.A. No. 6770, providing that the President may remove
a Deputy Ombudsman, should be declared void. Emilio A. Gonzales III v. Office of the President, etc., et
al./Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January
28, 2014.

Special Prosecutor; structural relationship with the Ombudsman; the Special Prosecutor is by no means
an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of
his/her duties, which include investigation and prosecution of officials in the Executive Department.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor and organic
component of the Office of the Ombudsman and by granting the Ombudsman control and supervision
over that office. This power of control and supervision includes vesting the Office of the Ombudsman
with the power to assign duties to the Special Prosecutor as he or she may deem fit. Even if the Office of
the Special Prosecutor is not expressly made part of the composition of the Office of the Ombudsman,
the role it performs as an organic component of that Office militates against a differential treatment
between the Ombudsmans Deputies, on one hand, and the Special Prosecutor himself, on the other.
What is true for the Ombudsman must be equally true, not only for her Deputies but, also for other
lesser officials of that Office who act directly as agents of the Ombudsman herself in the performance of
her duties. Emilio A. Gonzales III v. Office of the President, etc., et al./Wendell Bareras-Sulit v. Atty.
Paquito N. Ochoa, Jr., et al., G.R. No. 196231/G.R. No. 196232, January 28, 2014.