Republic of the Philippines 1.
to bar former President Marcos and his family from returning to the Philippines is to deny
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE
M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA,
PACIFICO E. MARCOS, NICANOR YÑIGUEZ and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ,
MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity
as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at
the present time and under present circumstances pose a threat to national interest and
welfare and in prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state
and order of society, the remains of Ferdinand E. Marcos will not be allowed
to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the
following major arguments:
them not only the inherent right of citizens to return to their country of birth but also the
protection of the Constitution and all of the rights guaranteed to Filipinos under the
Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr.,
Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion
for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to return',
including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the
decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to
warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not
changed the factual scenario under which the Court's decision was rendered. The threats to
the government, to which the return of the Marcoses has been viewed to provide a catalytic
effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to
the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced
the basis for the decision to bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines,
and declared that the matter "should be brought to all the courts of the world." [Comment, p.
1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific power of the President, particularly those
relating to the commander-in-chief clause, but not a diminution of the general grant of
executive power.
That the President has powers other than those expressly stated in the Constitution is
nothing new. This is recognized under the U.S. Constitution from which we have patterned
the distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of article II, section
1, and the conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the United States . .
." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31
ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow
from the general grant of that power, interpreted in confomity with other parts
of the Constitution...
Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of
the law of the land,
There is no similarity between the residual powers of the President under the 1987
Constitution and the power of the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President of the specific power of
legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her)
oath of office, is to protect and promote the interest and welfare of the people. Her decision to
bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present
time and under present circumstances is in compliance with this bounden duty. In the
absence of a clear showing that she had acted with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of
merit."

In Myers v. United States, the Supreme Court — accepted Hamilton's

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

And neither can we subscribe to the view that a recognition of the President's implied or
residual powers is tantamount to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the President under the Constitution
should not be confused with the power of the President under the 1973 Constitution to
legislate pursuant to Amendment No. 6 which provides:
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its
purpose, among others, is to assure that the nation will receive the benefit of candid,
objective and untrammeled communication and exchange of information between the
President and his/her advisers in the process of shaping or forming policies and arriving at
decisions in the exercise of the functions of the Presidency under the Constitution. The
confidentiality of the President’s conversations and correspondence is not unique. It is akin to
the confidentiality of judicial deliberations. It possesses the same value as the right to privacy
of all citizens and more, because it is dictated by public interest and the constitutionally
ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and
arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches
of government. In this task, this Court should neither curb the legitimate powers of any of the
co-equal and coordinate branches of government nor allow any of them to overstep the
boundaries set for it by our Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and the respondent Senate
Committees’ assertion of their power to conduct legislative inquiries, on the other. The
particular facts and circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the light of settled constitutional
and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must
be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and
Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the
"respondent Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for
about eleven (11) hours on matters concerning the National Broadband Project (the "NBN
Project"), a project awarded by the Department of Transportation and Communications
("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that
then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200
Million in exchange for his approval of the NBN Project. He further narrated that he informed
President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she
instructed him not to accept the bribe. However, when probed further on President Arroyo
and petitioner’s discussions relating to the NBN Project, petitioner refused to answer,
invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a)
whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she
directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioner’s answers to these three questions
by requiring him to appear and testify once more on November 20, 2007. On November 15,
2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and
requested them to dispense with petitioner’s testimony on the ground of executive
privilege.7The letter of Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials which
are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the exercise of her executive and
policy decision making process. The expectation of a President to the confidentiality
of her conversations and correspondences, like the value which we accord deference
for the privacy of all citizens, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and
responsibilities, if she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations with
the People’s Republic of China. Given the confidential nature in which these
information were conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very thing the privilege is
designed to protect.
 In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded
to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE / NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders
of the President invoking executive privilege. On November 22, 2007, the respondent
Committees issued the show-cause letter requiring him to explain why he should not be cited
in contempt. On November 29, 2007, in petitioner’s reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate hearing and that he thought the
only remaining questions were those he claimed to be covered by executive privilege. He
also manifested his willingness to appear and testify should there be new matters to be taken
up. He just requested that he be furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding
to his request for advance notice of the matters that he should still clarify, they issued the
Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege
speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in
contempt of respondent Committees and ordering his arrest and detention at the Office of the
Senate Sergeant-at-Arms until such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted
that he had not shown "any contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters, but respondent Committees did not
respond to his request for advance notice of questions. He also mentioned the petition
for certiorari he previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated January 30, 2008
which declared him in contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated February 4,
2008, the parties were required to observe the status quo prevailing prior to the Order dated
January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the
contempt order. Anent the first ground, we considered the subject communications as falling
under the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were received by a close
advisor of the President, and (c) respondent Committees failed to adequately show a
compelling need that would justify the limitation of the privilege and the unavailability of the
information elsewhere by an appropriate investigating authority. As to the second ground, we
found that respondent Committees committed grave abuse of discretion in issuing the
contempt order because (a) there was a valid claim of executive privilege, (b) their invitations
to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of
doubt as to the regularity of the proceeding that led to their issuance of the contempt order,
(d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure," and (e) they issued the contempt
order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration,
anchored on the following grounds:
I
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT
THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT
COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE
POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE
IS PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO
FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS
ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY
EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE
PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE
DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING
NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
 D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE
WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO
INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF
EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID
NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED
CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE
INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID
DOWN IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE
WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE
VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF
PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS
WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE
WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT
ARBITRARY OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting
the Decision of this Court. He avers that there is nothing in it that prohibits respondent
Committees from investigating the NBN Project or asking him additional questions. According
to petitioner, the Court merely applied the rule on executive privilege to the facts of the case.
He further submits the following contentions: first, the assailed Decision did not reverse the
presumption against executive secrecy laid down in Senate v. Ermita; second, respondent
Committees failed to overcome the presumption of executive privilege because it appears
that they could legislate even without the communications elicited by the three (3) questions,
and they admitted that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement of specificity applies only to the
privilege for State, military and diplomatic secrets, not to the necessarily broad and all-
encompassing presidential communications privilege; fourth, there is no right to pry into the
President’s thought processes or exploratory exchanges; fifth, petitioner is not covering up or
hiding anything illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to
publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating
effect on them; eighth, the requirement for a witness to be furnished advance copy of
questions comports with due process and the constitutional mandate that the rights of
witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the
matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent
Committees pursuant to their oversight function; hence, there is no reason for them "to make
much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2)
presidential communications enjoy a presumptive privilege against disclosure as earlier held
in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the
communications elicited by the three (3) questions are covered by executive privilege,
because all the elements of the presidential communications privilege are present; (4) the
subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective
under existing law and jurisprudence; (5) the failure of the present Senate to publish
its Rules renders the same void; and (6) respondent Committees arbitrarily issued the
contempt order.
Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008
(granting the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit
Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed
by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties
are as follows:
(1) whether or not there is a recognized presumptive presidential communications
privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in
issuing the contempt order.
We shall discuss these issues seriatim.
I
 There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate
v. Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure."
Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system.
That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution. Even Senate v.
Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a
"governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters";17 and that "the right to information
does not extend to matters recognized as ‘privileged information’ under the separation
of powers, by which the Court meant Presidential conversations, correspondences,
and discussions in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s Decision reversed the "presumption
that inclines heavily against executive secrecy and in favor of disclosure" arises from a
piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to
arrive at the true intent and meaning of a decision, no specific portion thereof should be
isolated and resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the circumstances obtaining
in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No.
464, Series of 2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in
the United States and in this jurisprudence, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts, or the public, is recognized
only in relation to certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are exempt from the duty
to disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure. (Emphasis
and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No.
464, solely by virtue of their positions in the Executive Branch. This means that when an
executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims
to be exempt from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such that the
presumption in this situation inclines heavily against executive secrecy and in favor of
disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the President’s authority and has the effect of prohibiting the official from
appearing before Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the
privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique
role and responsibilities of the executive branch, or in those instances where
exemption from disclosure is necessary to the discharge of highly
important executive responsibilities. The doctrine of executive privilege is thus
premised on the fact that certain information must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to Congress, the
necessity must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of the President", which
means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in the instant case
where the authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in
this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting
of this case markedly differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews
closely to the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. Being of American origin, it is
best understood in light of how it has been defined and used in the legal literature of
the United States.
Schwart defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell
defines it as "the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public." x x x In
this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same privilege
subject of Nixon. It quoted the following portion of the Nixon decision which explains
the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so in a
way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x
x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the
passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent
Committees, referring to the non-existence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v.
Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between
the Executive Department and the Legislative Department to explain why there should be no
implied authorization or presumptive authorization to invoke executive privilege by the
President’s subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of governments which is
sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when
invoked by the President on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption
accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v.
Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for
Presidential communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions
are not covered by executive privilege because the elements of the presidential
communications privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and non-
delegable presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not
relate to a "quintessential and non-delegable presidential power," because the Constitution
does not vest it in the President alone, but also in the Monetary Board which is required to
give its prior concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such
power less executive. "Quintessential" is defined as the most perfect embodiment of
something, the concentrated essence of substance.24 On the other hand, "non-delegable"
means that a power or duty cannot be delegated to another or, even if delegated, the
responsibility remains with the obligor.25 The power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence.26 Now, the fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a complete report of its
decision before contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by
each branch of that part of the governmental power assigned to it by the sovereign people.
There is the corollary doctrine of checks and balances, which has been carefully calibrated by
the Constitution to temper the official acts of each of these three branches. Thus, by analogy,
the fact that certain legislative acts require action from the President for their validity does not
render such acts less legislative in nature. A good example is the power to pass a law. Article
VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the same. The fact
that the approval or vetoing of the bill is lodged with the President does not render the power
to pass law executive in nature. This is because the power to pass law is generally a
quintessential and non-delegable power of the Legislature. In the same vein, the executive
power to enter or not to enter into a contract to secure foreign loans does not become less
executive in nature because of conditions laid down in the Constitution. The final decision in
the exercise of the said executive power is still lodged in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of
the presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine
of operational proximity" for the reason that "it maybe misconstrued to expand the scope of
the presidential communications privilege to communications between those who are
‘operationally proximate’ to the President but who may have "no direct communications with
her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S.
court was aware of the dangers that a limitless extension of the privilege risks and, therefore,
carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of
the agencies, and then only to White House staff that has "operational proximity" to direct
presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish
the purposes of the privilege, could pose a significant risk of expanding to a large
swath of the executive branch a privilege that is bottomed on a recognition of the
unique role of the President. In order to limit this risk, the presidential
communications privilege should be construed as narrowly as is consistent with
ensuring that the confidentiality of the President’s decision-making process is
adequately protected. Not every person who plays a role in the development of
presidential advice, no matter how remote and removed from the President,
can qualify for the privilege. In particular, the privilege should not extend to
staff outside the White House in executive branch agencies. Instead, the
privilege should apply only to communications authored or solicited and received by
those members of an immediate White House advisor’s staff who have broad and
significant responsibility for investigation and formulating the advice to be given the
President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory
of his deliberations or to pose a risk to the candor of his advisers. See AAPS,
997 F.2d at 910 (it is "operational proximity" to the President that matters in
determining whether "[t]he President’s confidentiality interests" is
implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive
branch" (a fear apparently entertained by respondents) is absent because the official involved
here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in
fact, her alter ego and a member of her official family. Nevertheless, in circumstances in
which the official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This
goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit
the availability of executive privilege only to officials who stand proximate to the President,
not only by reason of their function, but also by reason of their positions in the Executive’s
organizational structure. Thus, respondent Committees’ fear that the scope of the privilege
would be unnecessarily expanded with the use of the operational proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a generalized
interest; and in balancing respondent Committees’ and the President’s clashing
interests, the Court did not disregard the 1987 Constitutional provisions on
government transparency, accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President’s
invocation, through the Executive Secretary, of executive privilege because (a) between
respondent Committees’ specific and demonstrated need and the President’s generalized
interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in
the balancing of interest, the Court disregarded the provisions of the 1987 Philippine
Constitution on government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section
1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and
22.37
It must be stressed that the President’s claim of executive privilege is not merely founded on
her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive
Secretary Ermita specified presidential communications privilege in relation to diplomatic
and economic relations with another sovereign nation as the bases for the claim. Thus,
the Letter stated:
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China. Given the confidential
nature in which this information were conveyed to the President, he cannot provide
the Committee any further details of these conversations, without disclosing the very
thing the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state
the reasons for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect for a coordinate and co-
equal department.
It is easy to discern the danger that goes with the disclosure of the President’s
communication with her advisor. The NBN Project involves a foreign country as a party to the
agreement. It was actually a product of the meeting of minds between officials of the
Philippines and China. Whatever the President says about the agreement - particularly while
official negotiations are ongoing - are matters which China will surely view with particular
interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as
well as economic relations with the People’s Republic of China. We reiterate the importance
of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-
Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often
depend on secrecy, and even when brought to a conclusion, a full disclosure of all
the measures, demands, or eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a pernicious influence
on future negotiations or produce immediate inconveniences, perhaps danger and
mischief, in relation to other powers. The necessity of such caution and secrecy was
one cogent reason for vesting the power of making treaties in the President, with the
advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers
respecting a negotiation with a foreign power would be to establish a dangerous
precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access
to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case
of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.39upheld the privileged
character of diplomatic negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that "information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest." Even earlier, the same privilege was
upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the
Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the RP-
US Military Bases Agreement. The Court denied the petition, stressing that "secrecy
of negotiations with foreign countries is not violative of the constitutional
provisions of freedom of speech or of the press nor of the freedom of access to
information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential nature.Although
much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have
clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation …cannot be carried through without
many, many private talks and discussion, man to man; many
tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at
home and of their differences with other countries and with
other delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances… If these reports… should become public…
who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases,
June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is claimed,
is incompatible with the substance of democracy. As expressed by one
writer, "It can be said that there is no more rigid system of silence anywhere
in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott
Co., 1938) President Wilson in starting his efforts for the conclusion of the
 World War declared that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity
is possible. In the moment that negotiations are started, pressure
groups attempt to "muscle in." An ill-timed speech by one of the parties
or a frank declaration of the concession which are exacted or
offered on both sides would quickly lead to a widespread propaganda
to block the negotiations. After a treaty has been drafted and its terms
are fully published, there is ample opportunity for discussion before it
is approved. (The New American Government and Its Works, James T.
Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp. that the President is the sole organ of the nation in its negotiations with
foreign countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent
of the Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations."
Annals, 6th Cong., col. 613… (Emphasis supplied; underscoring in the
original)
Considering that the information sought through the three (3) questions subject of this
Petition involves the President’s dealings with a foreign nation, with more reason, this Court
is wary of approving the view that Congress may peremptorily inquire into not only official,
documented acts of the President but even her confidential and informal discussions with her
close advisors on the pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge constitutional functions
in the face of intense and unchecked legislative incursion into the core of the President’s
decision-making process, which inevitably would involve her conversations with a member of
her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding
the right of the people to information and public accountability and transparency, the Court
finds nothing in these arguments to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information
and the constitutional policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic government. The citizenry can
become prey to the whims and caprices of those to whom the power has been delegated if
they are denied access to information. And the policies on public accountability and
democratic government would certainly be mere empty words if access to such information of
public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3)
specific questions, did not in any way curb the public’s right to information or diminish the
importance of public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees
from inquiring into the NBN Project. They could continue the investigation and even call
petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so.
Our Decision merely excludes from the scope of respondents’ investigation the three (3)
questions that elicit answers covered by executive privilege and rules that petitioner cannot
be compelled to appear before respondents to answer the said questions. We have
discussed the reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized principle in
other democratic States. To put it simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an
absolute right to information. By their wording, the intention of the Framers to subject such
right to the regulation of the law is unmistakable. The highlighted portions of the following
provisions show the obvious limitations on the right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions
to such rights, among them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well as information
on inter-government exchanges prior to the conclusion of treaties and executive
agreements. It was further held that even where there is no need to protect such state
secrets, they must be "examined in strict confidence and given scrupulous
protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the people’s right to public information. This is
the reason why we stressed in the assailed Decision the distinction between these two rights.
As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a subpoena
duces tecum issued by Congress" and "neither does the right to information grant a citizen
the power to exact testimony from government officials." As pointed out, these rights belong
to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties
here are respondent Committees and petitioner Neri and that there was no prior request for
information on the part of any individual citizen. This Court will not be swayed by attempts to
blur the distinctions between the Legislature's right to information in a legitimate legislative
inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to
respect matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy
discussion on the purported legislative nature of their entire inquiry, as opposed to an
oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees’ power to investigate the NBN Project in aid of legislation. However, this Court
cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of
respondent Committees’ questions can be sufficiently supported by the expedient of
mentioning statutes and/or pending bills to which their inquiry as a whole may have
relevance. The jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a showing of
compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need
that would justify the limitation of the privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority." In the Motion for Reconsideration,
respondent Committees argue that the information elicited by the three (3) questions are
necessary in the discharge of their legislative functions, among them, (a) to consider the
three (3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents’ assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against
other interests and it is necessary to resolve the competing interests in a manner that would
preserve the essential functions of each branch. There, the Court weighed between
presidential privilege and the legitimate claims of the judicial process. In giving more weight
to the latter, the Court ruled that the President's generalized assertion of privilege must yield
to the demonstrated, specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of
the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.
The said Court further ratiocinated, through its ruling extensively quoted in the Honorable
Chief Justice Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment
to the rule of law. This is nowhere more profoundly manifest than in our view that 'the
twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.'
Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ
an adversary system of criminal justice in which the parties contest all issues before
a court of law. The need to develop all relevant facts in the adversary system is
both fundamental and comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for
the production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a
criminal trial the right 'to be confronted with the witness against him' and 'to
have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without
due process of law. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant and admissible
evidence be produced.
 In this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on the fair
administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant
in a criminal trial would cut deeply into the guarantee of due process of law
and gravely impair the basic function of the courts. A President's
acknowledged need for confidentiality in the communications of his office
is general in nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair adjudication
of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President's
broad interest in confidentiality of communication will not be
vitiated by disclosure of a limited number of conversations preliminarily shown
to have some bearing on the pending criminal cases.
We conclude 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. The generalized
assertion of privilege must yield to the demonstrated, specific need for evidence in
a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge
liability in a criminal case but rather with the Senate’s need for information in relation to its
legislative functions. This leads us to consider once again just how critical is the subject
information in the discharge of respondent Committees’ functions. The burden to show this is
on the respondent Committees, since they seek to intrude into the sphere of competence of
the President in order to gather information which, according to said respondents, would "aid"
them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the
nature of a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between Congress' legislative tasks
and the responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is undeniably a part of
its task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on
the basis of conflicting information provided in its hearings. In contrast, the
responsibility of the grand jury turns entirely on its ability to determine whether there
is probable cause to believe that certain named individuals did or did not commit
specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most
precise evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not
in the circumstances of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed materials are necessary to
its legislative judgments has been substantially undermined by subsequent events.
(Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling
or demonstratively critical and specific need for facts which is so essential to the judicial
power to adjudicate actual controversies. Also, the bare standard of "pertinency" set
in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict
between two (2) separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the Dissenting Opinion of the
Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a
qualified presumption in favor of the Presidential communications privilege. As shown
in the previous discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign Activities,
et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to
enable them to craft legislation. Here, there is simply a generalized assertion that the
information is pertinent to the exercise of the power to legislate and a broad and non-specific
reference to pending Senate bills. It is not clear what matters relating to these bills could not
be determined without the said information sought by the three (3) questions. As correctly
pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
…If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from proceeding
 with such legislation. They could easily presume the worst of the president in
enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before
legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by
courts of law. Interestingly, during the Oral Argument before this Court, the counsel for
respondent Committees impliedly admitted that the Senate could still come up with
legislations even without petitioner answering the three (3) questions. In other words, the
information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking
function of the Senate. For instance, question Number 1 whether the
President followed up the NBN project. According to the other counsel this
question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the
Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago,
she would like to indorse a Bill to include Executive Agreements had been
used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at
this problem in its factual setting as counsel for petitioner has observed,
there are intimations of a bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is
that critical to the lawmaking function of the Senate? Will it result to the
failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to
the Procurement Law, Your Honor, because the petitioner had already
testified that he was offered a P200 Million bribe, so if he was offered a P200
Million bribe it is possible that other government officials who had something
to do with the approval of the contract would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and
approve the project after being told about the alleged bribe. How critical is
that to the lawmaking function of the Senate? And the question is may they
craft a Bill a remedial law without forcing petitioner Neri to answer this
question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges. Due
to the failure of the respondent Committees to successfully discharge this burden, the
presumption in favor of confidentiality of presidential communication stands. The implication
of the said presumption, like any other, is to dispense with the burden of proof as to whether
the disclosure will significantly impair the President’s performance of her function. Needless
to state this is assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held
that while fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of past events. It
added that, normally, Congress legislates on the basis of conflicting information provided in
its hearings. We cannot subscribe to the respondent Committees’ self-defeating proposition
that without the answers to the three (3) questions objected to as privileged, the distinguished
members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent
Committees’ need for information in the exercise of this function is not as compelling as in
instances when the purpose of the inquiry is legislative in nature. This is because curbing
graft and corruption is merely an oversight function of Congress.44 And if this is the primary
objective of respondent Committees in asking the three (3) questions covered by privilege, it
may even contradict their claim that their purpose is legislative in nature and not oversight. In
any event, whether or not investigating graft and corruption is a legislative or oversight
function of Congress, respondent Committees’ investigation cannot transgress bounds set by
the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "the political
question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the principle in
appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent
Committee is not really ‘in aid of legislation’ because it is not related to a purpose within
the jurisdiction of Congress, since the aim of the investigation is to find out whether or
not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A.
No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within
the province of the courts rather than of the Legislature."47 (Emphasis and underscoring
supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to
the Office of the President.48While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to
make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has
not bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate,
neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a
"search for truth," which in respondent Committees’ view appears to be equated with the
search for persons responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the
power reposed upon our prosecutorial bodies and courts. The determination of who is/are
liable for a crime or illegal activity, the investigation of the role played by each official, the
determination of who should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the determination of criminal
guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial
agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to,
and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations
conducted solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this
regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress
may only investigate into the areas in which it may potentially legislate or appropriate,
it cannot inquire into matters which are within the exclusive province of one of the
other branches of the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither
can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of the
Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate
any act or omission of any public official, employee, office or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient."51 The Office of the
Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily
determine whether or not the allegations of anomaly are true and who are liable therefor. The
same holds true for our courts upon which the Constitution reposes the duty to determine
criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and
the courts are well-defined and ensure that the constitutionally guaranteed rights of all
persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course
of their investigation, they have the constitutional duty to refer the matter to the appropriate
agency or branch of government. Thus, the Legislature’s need for information in an
investigation of graft and corruption cannot be deemed compelling enough to pierce the
confidentiality of information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the information covered by
the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive
privilege on the ground that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial
determination to that effect. Significantly, however, in Nixon v. Sirica,52 the showing
required to overcome the presumption favoring confidentiality turned, not on the nature of
the presidential conduct that the subpoenaed material might reveal, but, instead, on
the nature and appropriateness of the function in the performance of which the
material was sought, and the degree to which the material was necessary to its
fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign
Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The Court is not persuaded. While it
is true that no impeachment proceeding has been initiated, however, complaints relating to
the NBN Project have already been filed against President Arroyo and other personalities
before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and
judicial arms of government are the bodies equipped and mandated by the Constitution and
our laws to determine whether or not the allegations of anomaly in the NBN Project are true
and, if so, who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
evidence essential to arrive at accurate factual findings to which to apply the law. Hence,
Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provides that "technical rules of evidence applicable to judicial proceedings which do not
affect substantive rights need not be observed by the Committee." Court rules which prohibit
leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to
name a few, do not apply to a legislative inquiry. Every person, from the highest public official
to the most ordinary citizen, has the right to be presumed innocent until proven guilty in
proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing
the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did
not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order
in accordance with their internal Rules; (4) they did not violate the requirement under Article
VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their
issuance of the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v.
Ermita, requiring invitations or subpoenas to contain the "possible needed statute which
prompted the need for the inquiry" along with the "usual indication of the subject of inquiry
and the questions relative to and in furtherance thereof" is not provided for by the Constitution
and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates
its own abuses. Consequently, claims that the investigative power of Congress has been
abused (or has the potential for abuse) have been raised many times.53 Constant exposure to
congressional subpoena takes its toll on the ability of the Executive to function effectively.
The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly
limit Congress’ power. The legislative inquiry must be confined to permissible areas and thus,
prevent the "roving commissions" referred to in the U.S. case, Kilbourn v.
Thompson.54 Likewise, witnesses have their constitutional right to due process. They should
be adequately informed what matters are to be covered by the inquiry. It will also allow them
to prepare the pertinent information and documents. To our mind, these requirements
concede too little political costs or burdens on the part of Congress when viewed vis-à-vis the
immensity of its power of inquiry. The logic of these requirements is well articulated in the
study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system allows
committees to continually investigate the Executive without constraint. One process
solution addressing this concern is to require each investigation be tied to a
clearly stated purpose. At present, the charters of some congressional committees
are so broad that virtually any matter involving the Executive can be construed to fall
within their province. Accordingly, investigations can proceed without articulation of
specific need or purpose. A requirement for a more precise charge in order to begin
an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to
the extent clear statements of rules cause legislatures to pause and seriously
 consider the constitutional implications of proposed courses of action in other
areas, they would serve that goal in the context of congressional investigations
as well.
The key to this reform is in its details. A system that allows a standing
committee to simply articulate its reasons to investigate pro forma does no
more than imposes minimal drafting burdens. Rather, the system must be
designed in a manner that imposes actual burdens on the committee to
articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation.(Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable
demand that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be
asked. As it were, the subpoena merely commanded him to "testify on what he knows relative
to the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court.
While it is true that this Court must refrain from reviewing the internal processes of Congress,
as a co-equal branch of government, however, when a constitutional requirement exists, the
Court has the duty to look into Congress’ compliance therewith. We cannot turn a blind eye to
possible violations of the Constitution simply out of courtesy. In this regard, the
pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress
failed to comply with its own rules, in the absence of showing that there was a
violation of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution
empowers each House to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained."
In the present case, the Court’s exercise of its power of judicial review is warranted because
there appears to be a clear abuse of the power of contempt on the part of respondent
Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt
any witness before it who disobey any order of the Committee or refuses to be sworn
or to testify or to answer proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the
contempt order because during the deliberation of the three (3) respondent Committees, only
seven (7) Senators were present. This number could hardly fulfill the majority requirement
needed by respondent Committee on Accountability of Public Officers and
Investigations which has a membership of seventeen (17) Senators and
respondent Committee on National Defense and Security which has a membership of
eighteen (18) Senators. With respect to respondent Committee on Trade and
Commerce which has a membership of nine (9) Senators, only three (3) members were
present.57 These facts prompted us to quote in the Decision the exchanges between
Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue
of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator
Francis Pangilinan stated that any defect in the committee voting had been cured because
two-thirds of the Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members of
the respondent Committees, the contempt order was prepared and thereafter presented to
the other members for signing. As a result, the contempt order which was issued on January
30, 2008 was not a faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order were present during
the January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules
of procedure. The rights of person appearing in or affected by such inquiries
shall be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness’ settled
expectation. If the limitations are not observed, the witness’ settled expectation is shattered.
Here, how could there be a majority vote when the members in attendance are not enough to
arrive at such majority? Petitioner has the right to expect that he can be cited in contempt
only through a majority vote in a proceeding in which the matter has been fully deliberated
upon. There is a greater measure of protection for the witness when the concerns and
objections of the members are fully articulated in such proceeding. We do not believe that
respondent Committees have the discretion to set aside their rules anytime they wish. This is
especially true here where what is involved is the contempt power. It must be stressed that
the Rules are not promulgated for their benefit. More than anybody else, it is the witness who
has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is
a continuing body; thus, it is not required to republish the Rules, unless the same is repealed
or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one
(1) Congress, but may be taken by the succeeding Congress as if present for the
first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s
main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the
start of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation."59 The latter
does not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result
in violation of the rights of witnesses should be considered null and void, considering that the
rationale for the publication is to protect the rights of witnesses as expressed in Section 21,
Article VI of the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.
Respondent Committees’ last argument is that their issuance of the contempt order is not
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in
their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the
assertion of respondent Committees, petitioner did not assume that they no longer had any
other questions for him. He repeatedly manifested his willingness to attend subsequent
hearings and respond to new matters. His only request was that he be furnished a copy of
the new questions in advance to enable him to adequately prepare as a resource person. He
did not attend the November 20, 2007 hearing because Executive Secretary Ermita
requested respondent Committees to dispense with his testimony on the ground of executive
privilege. Note that petitioner is an executive official under the direct control and supervision
of the Chief Executive. Why punish petitioner for contempt when he was merely directed by
his superior? Besides, save for the three (3) questions, he was very cooperative during the
September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience.
Instead of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly
dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed
petitioner of their ruling and given him time to decide whether to accede or file a motion for
reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a
co-equal branch of government. He is an alter ego of the President. The same haste and
impatience marked the issuance of the contempt order, despite the absence of the majority of
the members of the respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition for certiorari before this Court.
There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command
of transparency and public accountability. The recent clamor for a "search for truth" by the
general public, the religious community and the academe is an indication of a concerned
citizenry, a nation that demands an accounting of an entrusted power. However, the best
venue for this noble undertaking is not in the political branches of government. The
customary partisanship and the absence of generally accepted rules on evidence are too
great an obstacle in arriving at the truth or achieving justice that meets the test of the
constitutional guarantee of due process of law. We believe the people deserve a more
exacting "search for truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is
hereby DENIED.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature
are political branches of government. In a free and democratic society, the interests of these
branches inevitably clash, but each must treat the other with official courtesy and respect.
This Court wholeheartedly concurs with the proposition that it is imperative for the continued
health of our democratic institutions that we preserve the constitutionally mandated checks
and balances among the different branches of government.

In the present case, it is respondent Committees’ contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their
assertion that their internal procedures and deliberations cannot be inquired into by this Court
supposedly in accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review).
It moves this Court to wonder: In respondent Committees’ paradigm of checks and balances,
what are the checks to the Legislature’s all-encompassing, awesome power of investigation?
It is a power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret
out corruption, even in the highest echelons of government, such lofty intentions do not
validate or accord to Congress powers denied to it by the Constitution and granted instead to
the other branches of government.
 Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of
the cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept themselves
within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.6

Indeed, in this case, the Court may set aside procedural rules as the constitutional right of
EN BANC suffrage of a considerable number of Filipinos is involved.

G.R. No. 157013 July 10, 2003 The question of propriety of the instant petition which may appear to be visited by the vice of
prematurity as there are no ongoing proceedings in any tribunal, board or before a
ATTY. ROMULO B. MACALINTAL, petitioner, government official exercising judicial, quasi-judicial or ministerial functions as required by
vs. Rule 65 of the Rules of Court, dims in light of the importance of the constitutional issues
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as raised by the petitioner. In Tañada vs. Angara,7 the Court held:
Executive Secretary, and HON. EMILIA T. BONCODIN, Secretary of the Department of
Budget and Management, respondents. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes
the Constitution, the petition no doubt raises a justiciable controversy. Where an
AUSTRIA-MARTINEZ, J.: action of the legislative branch is seriously alleged to have infringed the Constitution,
it becomes not only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty (to adjudicate)
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a
remains to assure that the supremacy of the Constitution is upheld." Once a
member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act
"controversy as to the application or interpretation of constitutional provision is raised
No. 9189 (The Overseas Absentee Voting Act of 2003)1 suffer from constitutional infirmity.
before this Court (as in the instant case), it becomes a legal issue which the Court is
Claiming that he has actual and material legal interest in the subject matter of this case in
bound by constitutional mandate to decide."
seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.
In another case of paramount impact to the Filipino people, it has been expressed that it is
illogical to await the adverse consequences of the law in order to consider the controversy
The Court upholds the right of petitioner to file the present petition.
actual and ripe for judicial resolution.8 In yet another case, the Court said that:
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by
. . . despite the inhibitions pressing upon the Court when confronted with
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other
constitutional issues, it will not hesitate to declare a law or act invalid when it is
Purposes," appropriates funds under Section 29 thereof which provides that a supplemental
convinced that this must be done. In arriving at this conclusion, its only criterion will
budget on the General Appropriations Act of the year of its enactment into law shall provide
be the Constitution and God as its conscience gives it in the light to probe its
for the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner,
meaning and discover its purpose. Personal motives and political considerations are
have the right to restrain officials from wasting public funds through the enforcement of an
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as
unconstitutional statute.2 The Court has held that they may assail the validity of a law
intimidation, for all the awesome power of the Congress and Executive, the Court will
appropriating public funds3 because expenditure of public funds by an officer of the State for
not hesitate "to make the hammer fall heavily," where the acts of these departments,
the purpose of executing an unconstitutional act constitutes a misapplication of such funds. 4
or of any official, betray the people’s will as expressed in the Constitution . . . 9
The challenged provision of law involves a public right that affects a great number of citizens.
The need to consider the constitutional issues raised before the Court is further buttressed by
The Court has adopted the policy of taking jurisdiction over cases whenever the petitioner
the fact that it is now more than fifteen years since the ratification of the 1987 Constitution
has seriously and convincingly presented an issue of transcendental significance to the
requiring Congress to provide a system for absentee voting by qualified Filipinos abroad.
Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa
Thus, strong reasons of public policy demand that the Court resolves the instant
Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held:
petition10 and determine whether Congress has acted within the limits of the Constitution or if
it had gravely abused the discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrants or permanent residents in other countries by their mere act of executing
an affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the
winning candidates for national offices and party list representatives including the
President and the Vice-President violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee created in
Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the Commission on Elections
shall promulgate without violating the independence of the COMELEC under Section
1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. – The following shall be disqualified from voting under this
Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also state that he/she has not
applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of
Appeals12 to support his claim. In that case, the Court held that a "green card" holder
immigrant to the United States is deemed to have abandoned his domicile and residence in
the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow
provisional registration or a promise by a voter to perform a condition to be qualified to vote in
a political exercise;13 that the legislature should not be allowed to circumvent the requirement
of the Constitution on the right of suffrage by providing a condition thereon which in effect
amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. 14He
claims that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of the
Constitution.
Respondent COMELEC refrained from commenting on this issue.15
In compliance with the Resolution of the Court, the Solicitor General filed his comment for all
public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail
because of the absence of clear and unmistakable showing that said provision of law is
repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government owes a becoming respect for
the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a
verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he
cites Co vs. Electoral Tribunal of the House of Representatives16 wherein the Court held that
the term "residence" has been understood to be synonymous with "domicile" under both
Constitutions. He further argues that a person can have only one "domicile" but he can have
two residences, one permanent (the domicile) and the other temporary; 17 and that the
definition and meaning given to the term residence likewise applies to absentee voters.
Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the Court’s ruling in Faypon
vs. Quirino,19 the Solicitor General maintains that Filipinos who are immigrants or permanent
residents abroad may have in fact never abandoned their Philippine domicile. 20
Taking issue with the petitioner’s contention that "green card" holders are considered to have
abandoned their Philippine domicile, the Solicitor General suggests that the Court may have
to discard its ruling in Caasi vs. Court of Appeals21 in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of
the requisite affidavits, the Congress of the Philippines with the concurrence of the President
of the Republic had in fact given these immigrants and permanent residents the opportunity,
pursuant to Section 2, Article V of the Constitution, to manifest that they had in fact never
abandoned their Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., "animus manendi" and "animus
revertendi;" that Filipino immigrants and permanent residents abroad possess the
unquestionable right to exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given to the phrase, "qualified
citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a system of honest
and orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot.
Towards this end, the State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. – For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of the
Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is
qualified to register and vote under this Act, not otherwise disqualified by
law, who is abroad on the day of elections. (Emphasis supplied)
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the day of
elections, may vote for president, vice-president, senators and party-list
representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months immediately preceding the election. No literacy,
property, or other substantive requirement shall be imposed on the exercise of
suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos
abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by
(1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen
years of age, (4) who are residents in the Philippines for at least one year and in the place
where they propose to vote for at least six months immediately preceding the election. Under
Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or
permanent resident who is recognized as such in the host country unless he/she executes an
affidavit declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the
Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on
Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a
system for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression
that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent
residents overseas are perceived as having left and abandoned the Philippines to live
permanently in their host countries and therefore, a provision in the law enfranchising those
who do not possess the residency requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to the Philippines within a given period,
risks a declaration of unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights must be determined and all
public authority administered.23 Laws that do not conform to the Constitution shall be stricken
down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the
Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on
the courts alone but on the legislature as well. The question of the validity of every
statute is first determined by the legislative department of the government itself. 24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution
must be clear and unequivocal, for even if a law is aimed at the attainment of some
public good, no infringement of constitutional rights is allowed. To strike down a law
there must be a clear showing that what the fundamental law condemns or prohibits,
the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves
the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A.
No. 9189. It is a basic rule in constitutional construction that the Constitution should be
construed as a whole. In Chiongbian vs. De Leon,26 the Court held that a constitutional
provision should function to the full extent of its substance and its terms, not by itself alone,
but in conjunction with all other provisions of that great document. Constitutional provisions
are mandatory in character unless, either by express statement or by necessary implication,
a different intention is manifest.27 The intent of the Constitution may be drawn primarily from
the language of the document itself. Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional convention. 28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2,
Article V of the Constitution that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the absence of restrictions,
Congress is presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of
absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and
distinct from the regular system of voting, and to be a new and different manner of
voting from that previously known, and an exception to the customary and usual
manner of voting. The right of absentee and disabled voters to cast their ballots at an
election is purely statutory; absentee voting was unknown to, and not recognized at,
the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised
to accommodate those engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on the day of election, and the
privilege of absentee voting may flow from constitutional provisions or be
conferred by statutes, existing in some jurisdictions, which provide in varying terms
for the casting and reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate
with equality among all the class to which it is granted; but statutes of this
nature may be limited in their application to particular types of elections. The
statutes should be construed in the light of any constitutional provisions
affecting registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions thereunder; they should
also be construed in the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this can be done without doing
violence to their provisions and mandates. Further, in passing on statutes
regulating absentee voting, the court should look to the whole and every part
of the election laws, the intent of the entire plan, and reasons and spirit of their
adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same
time, both a resident and an absentee.30 However, under our election laws and the countless
pronouncements of the Court pertaining to elections, an absentee remains attached to his
residence in the Philippines as residence is considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of habitual
residence." In Ong vs. Republic, this court took the concept of domicile to mean an
individual’s "permanent home," "a place to which, whenever absent for business or
for pleasure, one intends to return, and depends on facts and circumstances in the
sense that they disclose intent." Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed place" and animus
manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual
to a certain place. It is the physical presence of a person in a given area, community
or country. The essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which the resident has
taken up his abode ends. One may seek a place for purposes such as pleasure,
business, or health. If a person’s intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It is thus, quite
perfectly normal for an individual to have different residences in various places.
However, a person can only have a single domicile, unless, for various reasons, he
successfully abandons his domicile in favor of another domicile of choice.
In Uytengsu vs. Republic, we laid this distinction quite clearly:
"There is a difference between domicile and residence. ‘Residence’ is used
to indicate a place of abode, whether permanent or temporary; ‘domicile’
denotes a fixed permanent residence to which, when absent, one has the
intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is residence
coupled with the intention to remain for an unlimited time. A man can have
but one domicile for the same purpose at any time, but he may have
numerous places of residence. His place of residence is generally his place
of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile."
 For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this
country, the framers of the Constitution considered the circumstances that impelled them to
require Congress to establish a system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage,
which here has a residential restriction, is not denied to citizens temporarily residing
or working abroad. Based on the statistics of several government agencies, there
ought to be about two million such Filipinos at this time. Commissioner Bernas had
earlier pointed out that these provisions are really lifted from the two previous
Constitutions of 1935 and 1973, with the exception of the last paragraph. They could
not therefore have foreseen at that time the phenomenon now described as the
Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of
workers are to be found in the Middle East, they are scattered in 177 countries in the
world.
In a previous hearing of the Committee on Constitutional Commissions and
Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that
there was no insuperable obstacle to making effective the right of suffrage for
Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient
foreign citizenship. And those who on their own or under pressure of economic
necessity here, find that they have to detach themselves from their families to work in
other countries with definite tenures of employment. Many of them are on contract
employment for one, two, or three years. They have no intention of changing their
residence on a permanent basis, but are technically disqualified from exercising the
right of suffrage in their countries of destination by the residential requirement in
Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall
have resided in the Philippines for at least one year and in the place wherein
they propose to vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino citizens
an effective, rather than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying
that, I would like to make a comment on the meaning of "residence" in the
Constitution because I think it is a concept that has been discussed in various
decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of "residence" in the Election Law.
Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the
saying goes, to improve his lot and that, of course, includes study in other
places, practice of his avocation, reengaging in business. When an election
is to be held, the citizen who left his birthplace to improve his lot may decide
to return to his native town, to cast his ballot, but for professional or business
reasons, or for any other reason, he may not absent himself from the place of
his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one,
and is not willing to give up or lose the opportunity to choose the officials who
are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence
of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his
residence of origin has not been deemed sufficient to consider abandonment or loss of such
residence of origin.
In other words, "residence" in this provision refers to two residence qualifications:
"residence" in the Philippines and "residence" in the place where he will vote. As far
as residence in the Philippines is concerned, the word "residence" means domicile,
but as far as residence in the place where he will actually cast his ballot is concerned,
the meaning seems to be different. He could have a domicile somewhere else and
yet he is a resident of a place for six months and he is allowed to vote there. So that
there may be serious constitutional obstacles to absentee voting, unless the vote of
the person who is absent is a vote which will be considered as cast in the place
of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the
right of suffrage, at least a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that when this Article of the
Constitution explicitly and unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of global proportions. In effect,
this will require budgetary and administrative commitments on the part of the
Philippine government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism that will be put
 in place to make effective the right to vote. Therefore, seeking shelter in some wise
jurisprudence of the past may not be sufficient to meet the demands of the
right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be entertained at the
proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside
abroad principally for economic reasons and hence they contribute in no small measure to
the economic uplift of this country, their voices are marginal insofar as the choice of this
country’s leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering the
novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with
the right to vote would spawn constitutional problems especially because the Constitution
itself provides for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if
the term "absentee voting" also includes transient voting; meaning, those who are, let
us say, studying in Manila need not go back to their places of registration, for
instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where
they are registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing
students and military people who are temporarily in another place to register and
vote. I believe that those situations can be covered by the Omnibus Election
Code. The reason we want absentee voting to be in the Constitution as a
mandate to the legislature is that there could be inconsistency on the
residence rule if it is just a question of legislation by Congress. So, by allowing
it and saying that this is possible, then legislation can take care of the
rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems
that could impede the implementation of its pursuit to enfranchise the largest number of
qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly
mandated Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee
voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided in the
Philippines for at least one year and in the place where they propose to vote for at
least six months preceding the elections. What is the effect of these mandatory
requirements on the matter of the exercise of the right of suffrage by the absentee
voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas,
that the domicile requirements as well as the qualifications and disqualifications
would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is
flexible. For instance, one might be a resident of Naga or domiciled therein, but he
satisfies the requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change
the word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY
FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the Committee
wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED
FILIPINOS ABROAD" because "QUALIFIED" would assume that he has the
qualifications and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
 MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed
amendment, I specifically stated that the National Assembly shall prescribe a system
which will enable qualified citizens, temporarily absent from the Philippines, to vote.
According to Commissioner Monsod, the use of the phrase "absentee voting" already
took that into account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example, to
require where the registration is. If it is, say, members of the diplomatic corps
who may be continuously abroad for a long time, perhaps, there can be a
system of registration in the embassies. However, we do not like to preempt the
legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to
provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated
in Section 1 shall remain except for the residency requirement. This is in fact the reason why
the Constitutional Commission opted for the term qualified Filipinos abroad with respect to
the system of absentee voting that Congress should draw up. As stressed by Commissioner
Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption
is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning
the provision on absentee voting, the Constitutional Commission discussed how the system
should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in
the case of qualified Filipino citizens residing abroad and exercising their right of
suffrage, they can cast their votes for the candidates in the place where they were
registered to vote in the Philippines. So as to avoid any complications, for example, if
they are registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote
only for the local and national candidates in Angeles City. I just want to make that
clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner
Suarez that this envisions Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad. He may not be actually residing
abroad; he may just be there on a business trip. It just so happens that the day
before the elections he has to fly to the United States, so he could not cast his vote.
He is temporarily abroad, but not residing there. He stays in a hotel for two days and
comes back. This is not limited only to Filipinos temporarily residing abroad.
But as long as he is temporarily abroad on the date of the elections, then he
can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily
abroad," it need not be on very short trips. One can be abroad on a treaty traders
visa. Therefore, when we talk about registration, it is possible that his residence is in
Angeles and he would be able to vote for the candidates in Angeles, but Congress
or the Assembly may provide the procedure for registration, like listing one’s
name, in a registry list in the embassy abroad. That is still possible under the
system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod
agrees with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting
age while living abroad and he has never registered here. Where will he register? Will
he be a registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with
the registration requirements in an embassy in the United States and his name is
then entered in the official registration book in Angeles City, for instance.
 FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are
more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents’ domicile of origin is in the Philippines,
and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in
statutory construction, which may be applied in construing constitutional provisions, 37 the
strategic location of Section 2 indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos who are not in
the Philippines may be allowed to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement
found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in the
Philippines." They are permanent immigrants. They have changed residence so they
are barred under the Constitution. This is why I asked whether this committee
amendment which in fact does not alter the original text of the bill will have any effect
on this?
Senator Angara. Good question, Mr. President. And this has been asked in various
fora. This is in compliance with the Constitution. One, the interpretation here of
"residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to one’s
home. And the fact that a Filipino may have been physically absent from the
Philippines and may be physically a resident of the United States, for example,
but has a clear intent to return to the Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we – that
Congress – must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding
physical presence, then there is no way we can provide for offshore voting to
our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V,
it reads: "The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words,
anything that we may do or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified. Absent the qualification,
they cannot vote. And "residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called "green-card holders", but
the Constitution is the Constitution. We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair the Constitution.
Look at what the Constitution says – "In the place wherein they propose to vote for at
least six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
 I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are
separated only by a creek. But one who votes in Makati cannot vote in Pateros
unless he resides in Pateros for six months. That is how restrictive our Constitution
is. I am not talking even about the Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so.
But he must do so, make the transfer six months before the election, otherwise, he is
not qualified to vote.
That is why I am raising this point because I think we have a fundamental difference
here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already
well-debated even in the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the six-month/one-year
residency requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-year
residency requirement. That is the first principle, Mr. President, that one must
remember.
The second reason, Mr. President, is that under our jurisprudence – and I think this is
so well-entrenched that one need not argue about it – "residency" has been
interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is exactly
the whole point of this exercise – to enfranchise them and empower them to
vote.38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
process, to wit:
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed
law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. – The following shall be disqualified from voting under this
Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have
pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined
under Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty: Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to vote
upon expiration of five (5) years after service of sentence; Provided, further, That the
Commission may take cognizance of final judgments issued by foreign courts or
tribunals only on the basis of reciprocity and subject to the formalities and processes
prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval of
his/her registration under this Act. Such affidavit shall also state that he/she has not
applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent by
competent authority in the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments concerned, unless such
competent authority subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
an immigrant or permanent resident who is "recognized as such in the host country" because
immigration or permanent residence in another country implies renunciation of one’s
residence in his country of origin. However, same Section allows an immigrant and
permanent resident abroad to register as voter for as long as he/she executes an affidavit to
show that he/she has not abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise
disqualified by law" must be entitled to exercise the right of suffrage and, that Congress must
establish a system for absentee voting; for otherwise, if actual, physical residence in the
Philippines is required, there is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but
more significantly, it serves as an explicit expression that he had not in fact abandoned his
domicile of origin. Thus, it is not correct to say that the execution of the affidavit under
Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by
a voter to perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad because by
their status in their host countries, they are presumed to have relinquished their intent to
return to this country; thus, without the affidavit, the presumption of abandonment of
Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why
the Senate required the execution of said affidavit. It wanted the affiant to exercise the option
to return or to express his intention to return to his domicile of origin and not to preempt that
choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired permanent
resident status abroad," a requirement for the registration is the submission of "a
Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or
consulate official authorized to administer oath…"
Mr. President, may we know the rationale of this provision? Is the purpose of this
Sworn Declaration to include only those who have the intention of returning to be
qualified to exercise the right of suffrage? What if the Filipino immigrant has no
purpose of returning? Is he automatically disbarred from exercising this right to
suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino, no
matter whether he is a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card holder, that means he has
acquired permanent residency in the United States, then he must indicate an
intention to return. This is what makes for the definition of "domicile." And to
acquire the vote, we thought that we would require the immigrants and the green-
card holders . . . Mr. President, the three administration senators are leaving, maybe
we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for
the requirement that an immigrant or a green-card holder should file an affidavit that
he will go back to the Philippines is that, if he is already an immigrant or a green-card
holder, that means he may not return to the country any more and that contradicts
the definition of "domicile" under the law.
But what we are trying to do here, Mr. President, is really provide the choice to
the voter. The voter, after consulting his lawyer or after deliberation within the family,
may decide "No, I think we are risking our permanent status in the United States if we
file an affidavit that we want to go back." But we want to give him the opportunity
to make that decision. We do not want to make that decision for
him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case because the
Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who
are immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the
requirements of registration under the new law for the purpose of exercising their right of
suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to
"resume actual physical permanent residence in the Philippines not later than three years
from approval of his/her registration," the Filipinos abroad must also declare that they have
not applied for citizenship in another country. Thus, they must return to the Philippines;
otherwise, their failure to return "shall be cause for the removal" of their names "from the
National Registry of Absentee Voters and his/her permanent disqualification to vote
in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter permanently
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has
not relinquished Philippine citizenship and who has not actually abandoned his/her intentions
to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the
Philippine embassy, consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for purposes of the
elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. –
11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under Republic
Act No. 8189, shall, in every national election, file with the officer of the embassy,
consulate or other foreign service establishment authorized by the Commission, a
 sworn written application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign service establishment
shall transmit to the Commission the said application to vote within five (5) days from
receipt thereof. The application form shall be accomplished in triplicate and submitted
together with the photocopy of his/her overseas absentee voter certificate of
registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to,
the embassy, consulate or foreign service establishment, which has jurisdiction over
the country where he/she has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas
absentee voting processes shall be made available at no cost to the overseas
absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires that Congress provide a system
of absentee voting that necessarily presupposes that the "qualified citizen of the Philippines
abroad" is not physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in
the Philippines. He is presumed not to have lost his domicile by his physical absence from
this country. His having become an immigrant or permanent resident of his host country does
not necessarily imply an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to express that he
has not actually abandoned his domicile in the Philippines by executing the affidavit required
by Sections 5(d) and 8(c) of the law.
Petitioner’s speculative apprehension that the implementation of Section 5(d) would affect the
credibility of the elections is insignificant as what is important is to ensure that all those who
possess the qualifications to vote on the date of the election are given the opportunity and
permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough
resources and talents to ensure the integrity and credibility of any election conducted
pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the
Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would
suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their promise to
return, the result of the elections would be affected and could even be a ground to contest the
proclamation of the winning candidates and cause further confusion and doubt on the
integrity of the results of the election. Indeed, the probability that after an immigrant has
exercised the right to vote, he shall opt to remain in his host country beyond the third year
from the execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. As expressed in Tañada vs. Tuvera,40 the
Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find it
impractical.
Congress itself was conscious of said probability and in fact, it has addressed the expected
problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to
return as promised stands to lose his right of suffrage. Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national elections, his name may be
ordered removed from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast
by the qualified voters abroad who were not able to return within three years as promised?
What is the effect on the votes cast by the non-returnees in favor of the winning candidates?
The votes cast by qualified Filipinos abroad who failed to return within three years shall not
be invalidated because they were qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the names of the immigrants or permanent
residents from the National Registry of Absentee Voters and their permanent disqualification
to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find Section
5(d) of R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president,
vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. –
.........
18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning
candidate if the outcome of the election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is empowered to order the
proclamation of winning candidates despite the fact that the scheduled election
has not taken place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and circumstances peculiar
to such country or countries, in which events, factors and circumstances are beyond
the control or influence of the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
COMELEC to order the proclamation of winning candidates insofar as it affects the canvass
of votes and proclamation of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the
board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the certificates of canvass,
the President of the Senate shall, not later than thirty days after the day of the
election, open all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the
votes.
The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the Members of both Houses of
the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning candidates
for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4,
Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can
only proclaim the winning Senators and party-list representatives but not the President and
Vice-President.41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is
far too sweeping that it necessarily includes the proclamation of the winning candidates for
the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
Constitution only insofar as said Section totally disregarded the authority given to Congress
by the Constitution to proclaim the winning candidates for the positions of president and vice-
president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the
Special Board of Canvassers shall transmit via facsimile, electronic mail, or any other
means of transmission equally safe and reliable the Certificates of Canvass and the
Statements of Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the
returns of every election for President and Vice-President shall be certified by the board of
canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally
belongs to it or, as aptly stated by petitioner, to encroach "on the power of Congress to
canvass the votes for president and vice-president and the power to proclaim the winners for
the said positions." The provisions of the Constitution as the fundamental law of the land
should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the
canvassing of the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common
Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the
Civil Service Commission, the Commission on Elections, and the Commission on
Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power
to review, revise, amend and approve the Implementing Rules and Regulations promulgated
by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as
a constitutional body, is not under the control of either the executive or legislative
departments of government; that only the COMELEC itself can promulgate rules and
regulations which may be changed or revised only by the majority of its members; and that
should the rules promulgated by the COMELEC violate any law, it is the Court that has the
power to review the same via the petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with
the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the
petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It asserts that its power to formulate rules
and regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held that the
power of the COMELEC to formulate rules and regulations is implicit in its power to
implement regulations under Section 2(1) of Article IX-C43 of the Constitution. COMELEC
joins the petitioner in asserting that as an independent constitutional body, it may not be
subject to interference by any government instrumentality and that only this Court may review
COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to wit:
SEC. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in
not more than three (3) countries, subject to the approval of the Congressional
Oversight Committee. Voting by mail may be allowed in countries that satisfy the
following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion
for fraud;
b) Where there exists a technically established identification system that would
preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies,
consulates and other foreign service establishments concerned are adequate and
well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee . . . . . . . . . (Emphasis
supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence
of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
unconstitutional on the ground that there is nothing in Article VI of the Constitution on
Legislative Department that would as much as imply that Congress has concurrent power to
enforce and administer election laws with the COMELEC; and by the principles of exclusio
unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis-à-vis the independence of the COMELEC,
as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional
Oversight Committee is hereby created, composed of the Chairman of the Senate
Committee on Constitutional Amendments, Revision of Codes and Laws, and seven
(7) other Senators designated by the Senate President, and the Chairman of the
House Committee on Suffrage and Electoral Reforms, and seven (7) other Members
of the House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be designated by each
House of Congress, four (4) should come from the majority and the remaining three
(3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor
and evaluate the implementation of this Act. It shall review, revise, amend and
approve the Implementing Rules and Regulations promulgated by the
Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. – The Commission shall
issue the necessary rules and regulations to effectively implement the provisions of
this Act within sixty (60) days from the effectivity of this Act. The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint
Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question
that the authority of Congress to "monitor and evaluate the implementation" of R.A. No. 9189
is geared towards possible amendments or revision of the law itself and thus, may be
performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the
JCOC the following functions: (a) to "review, revise, amend and approve the Implementing
Rules and Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b)
subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three
countries for the May 2004 elections and in any country determined by COMELEC.
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."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an
independent COMELEC, the Court has held that "[w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the Constitution
wanted it to be independent from the other departments of the Government."44In an earlier
case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct
and important part in our scheme of government. In the discharge of its functions, it
should not be hampered with restrictions that would be fully warranted in the case of
a less responsible organization. The Commission may err, so may this court also. It
should be allowed considerable latitude in devising means and methods that will
insure the accomplishment of the great objective for which it was created – free,
orderly and honest elections. We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this court
should not interfere. Politics is a practical matter, and political questions must be
dealt with realistically – not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political strategists,
and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political
questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent
body "except those specifically granted by the Constitution," that is, to review its decisions,
orders and rulings.46 In the same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may intrude into the
independence of the COMELEC by exercising supervisory powers over its rule-making
authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty days from the effectivity of this Act." This provision of law follows the usual procedure in
drafting rules and regulations to implement a law – the legislature grants an administrative
agency the authority to craft the rules and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in its particular field of
operation.47 Once a law is enacted and approved, the legislative function is deemed
accomplished and complete. The legislative function may spring back to Congress relative to
the same law only if that body deems it proper to review, amend and revise the law, but
certainly not to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The
Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional
authority. Congress trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but to withdraw from its
usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval," and the second sentence of the second
paragraph of Section 25 stating that "[i]t shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission," whereby Congress,
in both provisions, arrogates unto itself a function not specifically vested by the Constitution,
should be stricken out of the subject statute for constitutional infirmity. Both provisions
brazenly violate the mandate on the independence of the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in
the first sentence of Section 17.1 which empowers the Commission to authorize voting by
mail in not more than three countries for the May, 2004 elections; and the phrase, "only upon
review and approval of the Joint Congressional Oversight Committee" found in the second
paragraph of the same section are unconstitutional as they require review and approval of
voting by mail in any country after the 2004 elections. Congress may not confer upon itself
the authority to approve or disapprove the countries wherein voting by mail shall be allowed,
as determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of
R.A. No. 9189.48 Otherwise, Congress would overstep the bounds of its constitutional
mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate opinion
of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections
17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers
given to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No.
9189 are declared VOIDfor being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit:
"subject to the approval of the Joint Congressional Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and
approval of the Joint Congressional Oversight Committee;"
c) The second sentence of the first paragraph of Section 19, to wit: "The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval;" and
d) The second sentence in the second paragraph of Section 25, to wit: "It shall
review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence
of constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the
authority given to the COMELEC to proclaim the winning candidates for the Senators and
party-list representatives but not as to the power to canvass the votes and proclaim the
winning candidates for President and Vice-President which is lodged with Congress under
Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be
in full force and effect.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191618 November 23, 2010
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.
DECISION
NACHURA, J.:
Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty.
Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an
illegal and unauthorized progeny of Section 4,2 Article VII of the Constitution:
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.
While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for
the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by
a budget allocation, a seal, a set of personnel and confidential employees, to effect the
constitutional mandate. Petitioner’s averment is supposedly supported by the provisions of
the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules), 3 specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and
the Associate Justices are designated as "Chairman and Members," respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of
the PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court
seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional
provision does allow the "appointment of additional personnel."
Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared
that "contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner
reiterates that the constitution of the PET, with the designation of the Members of the Court
as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution,
which prohibits the designation of Members of the Supreme Court and of other courts
established by law to any agency performing quasi-judicial or administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010,
filed a Comment5thereon. At the outset, the OSG points out that the petition filed by Atty.
Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x
x x is a violation of the well known rules of practice and pleading in this jurisdiction."
In all, the OSG crystallizes the following issues for resolution of the Court:
I
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF
ARTICLE VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS
MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL
FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6
In his Reply,7 petitioner maintains that:
1. He has legal standing to file the petition given his averment of transcendental
importance of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court, violates
Section 4, Article VII of the Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to
Section 12, Article VIII of the Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of
the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4,
Article VII and Section 12, Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the
present petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination
of the case itself.8
On more than one occasion we have characterized a proper party as one who has sustained
or is in immediate danger of sustaining an injury as a result of the act complained of. 9 The
dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult questions."11 Until and unless such actual or threatened
injury is established, the complainant is not clothed with legal personality to raise the
constitutional question.
Our pronouncements in David v. Macapagal-Arroyo12 illuminate:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts
a "public right" in assailing an allegedly illegal official action, does so as a representative of
the general public. He may be a person who is affected no differently from any other person.
He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either
case, he has to adequately show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public order and the securing
of relief as a" citizen" or "taxpayer."
xxxx
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same
Court ruled that for a private individual to invoke the judicial power to determine the validity of
an executive or legislative action, he must show that he has sustained a direct injury as a
result of that action, and it is not sufficient that he has a general interest common to all
members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in
the case such that he has sustained, or will sustain direct injury as a result." The Vera
doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila
Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and
Anti-Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In
Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the "far-
reaching implications" of the petition notwithstanding its categorical statement that petitioner
therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a
generalized interest in the outcome of this case, and succeeds only in muddling the issues.
Paragraph 2 of the petition reads:
2. x x x Since the creation and continued operation of the PET involves the use of public
funds and the issue raised herein is of transcendental importance, it is petitioner’s humble
submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing
to file this petition.
But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant
in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo
(Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando
Poe, Jr. before the Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned
above, requires that the constitutional question be raised at the earliest possible
opportunity.14Such appearance as counsel before the Tribunal, to our mind, would have been
the first opportunity to challenge the constitutionality of the Tribunal’s constitution.
Although there are recognized exceptions to this requisite, we find none in this instance.
Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which
tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His
failure to raise a seasonable constitutional challenge at that time, coupled with his
unconditional acceptance of the Tribunal’s authority over the case he was defending,
translates to the clear absence of an indispensable requisite for the proper invocation of this
Court’s power of judicial review. Even on this score alone, the petition ought to be dismissed
outright.
Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had
occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral
Tribunal in the auspicious case of Tecson v. Commission on Elections. 15 Thus -
Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:
"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 provision is an innovation of the 1987 Constitution. The omission in the 1935 and the
1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-
presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not
(being) justiciable" controversies or disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The constitutional lapse prompted
Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the
Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing
for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and
the Associate Justices of the Supreme Court to be the members of the tribunal. Although the
subsequent adoption of the parliamentary form of government under the 1973 Constitution
might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would
now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and
Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution
which 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."
The word "contest" in the provision means that the jurisdiction of this Court can only be
invoked after the election and proclamation of a President or Vice President. There can be no
"contest" before a winner is proclaimed.16
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last
paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion
that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction
at this point of time to entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal
(SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each
specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as
"sole judge of all contests relating to the election, returns, and qualifications" of the President
and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long
recognized that these electoral tribunals exercise jurisdiction over election contests only after
a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules
of the Presidential Electoral Tribunal provide that, for President or Vice-President, election
protest or quo warranto may be filed after the proclamation of the winner.17
Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of
2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4,
Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the
overarching framework affirmed in Tecson v. Commission on Elections 19 is that the Supreme
Court has original jurisdiction to decide presidential and vice-presidential election protests
while concurrently acting as an independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as worded,
does not authorize the constitution of the PET. And although he concedes that the Supreme
Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of
the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint
additional personnel for the purpose, notwithstanding the silence of the constitutional
provision.
Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might
possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme
Court is allowed to promulgate. Apparently, petitioner’s concept of this adjunct of judicial
power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are guided
by well-settled principles of constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. This Court, speaking through former Chief
Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration20 instructs:
As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law
to obtain that it should ever be present in the people’s consciousness, its language as much
as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus these are cases where the need for construction is reduced to a
minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be
interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful
provision must be examined in light of the history of the times, and the condition and
circumstances surrounding the framing of the Constitution.21 In following this guideline, courts
should bear in mind the object sought to be accomplished in adopting a doubtful
constitutional provision, and the evils sought to be prevented or remedied. 22 Consequently,
the intent of the framers and the people ratifying the constitution, and not the panderings of
self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We
intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary: 23
It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to
wit:
[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not willed, that said provision
should function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment of the
PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent
interpretations which, though unacceptable to petitioner, do not include his restrictive view –
one which really does not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with
other related provisions of the Constitution such as the parallel provisions on the Electoral
Tribunals of the Senate and the House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the framework
of judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the
Supreme Court’s constitutional mandate to act as sole judge of election contests involving
our country’s highest public officials, and its rule-making authority in connection therewith, is
not restricted; it includes all necessary powers implicit in the exercise thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus: 25
The 1987 Constitution has fully restored the separation of powers of the three great branches
of government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." Thus, the 1987
Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of
the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the
Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions
not only establish a separation of powers by actual division but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as
the Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of all
the judicial power which may be exercised under the government."
The Court could not have been more explicit then on the plenary grant and exercise of
judicial power. Plainly, 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 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 Court’s 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.26
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. 27
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. 28
Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court,
Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 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. 31
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.32
Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors
of the present Constitution did not contain similar provisions and instead vested upon the
legislature all phases of presidential and vice-presidential elections – from the canvassing of
election returns, to the proclamation of the president-elect and the vice-president elect, and
even the determination, by ordinary legislation, of whether such proclamations may be
contested. Unless the legislature enacted a law creating an institution that would hear
election contests in the Presidential and Vice-Presidential race, a defeated candidate had no
legal right to demand a recount of the votes cast for the office involved or to challenge the
ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests
were non-justiciable in the then prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the
absence of a similar provision in its pattern, the Federal Constitution of the United States.
Rather, the creation of such tribunal was left to the determination of the National Assembly.
The journal of the 1935 Constitutional Convention is crystal clear on this point:
Delegate Saguin. – For an information. It seems that this Constitution does not contain any
provision with respect to the entity or body which will look into the protests for the positions of
the President and Vice-President.
President Recto. – Neither does the American constitution contain a provision over the
subject.
Delegate Saguin. – But then, who will decide these protests?
President Recto. – I suppose that the National Assembly will decide on that.33
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793,
establishing an independent PET to try, hear, and decide protests contesting the election of
President and Vice-President. The Chief Justice and the Associate Justices of the Supreme
Court were tasked to sit as its Chairman and Members, respectively. Its composition was
extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who
may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its
proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential
contests and authorized to exercise powers similar to those conferred upon courts of justice,
including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their
appearance, production of documents and other evidence, and the power to punish
contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers,
and employees necessary for the efficient performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which
replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a
parliamentary government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President
was not directly chosen by the people but elected from among the members of the National
Assembly, while the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power
was restored to the President who was elected directly by the people. An Executive
Committee was formed to assist the President in the performance of his functions and duties.
Eventually, the Executive Committee was abolished and the Office of Vice-President was
installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on
December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the
Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor
and For Other Purposes." This tribunal was composed of nine members, three of whom were
the Chief Justice of the Supreme Court and two Associate Justices designated by him, while
the six were divided equally between representatives of the majority and minority parties in
the Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was
permitted to recommend the prosecution of persons, whether public officers or private
individuals, who in its opinion had participated in any irregularity connected with the
canvassing and/or accomplishing of election returns.
The independence of the tribunal was highlighted by a provision allocating a specific budget
from the national treasury or Special Activities Fund for its operational expenses. It was
empowered to appoint its own clerk in accordance with its rules. However, the subordinate
officers were strictly employees of the judiciary or other officers of the government who were
merely designated to the tribunal.
After the historic People Power Revolution that ended the martial law era and installed
Corazon Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. 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. 34
Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman"
and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is
authorized to appoint personnel; and (4) additional compensation is allocated to the
"Members," in order to bolster his claim of infirmity in the establishment of the PET, are too
superficial to merit further attention by the Court.
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.35
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.36 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),37 which we have affirmed on numerous occasions.38
Particularly cogent are the discussions of the Constitutional Commission on the parallel
provisions of the SET and the HRET. The discussions point to the inevitable conclusion that
the different electoral tribunals, with the Supreme Court functioning as the PET, are
constitutional bodies, independent of the three departments of government – Executive,
Legislative, and Judiciary – but not separate therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral
tribunal, either of the House or of the Senate, is it correct to say that these tribunals are
constitutional creations? I will distinguish these with the case of the Tanodbayan and the
Sandiganbayan which are created by mandate of the Constitution but they are not
constitutional creations. Is that a good distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the
House Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77
Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the
electoral tribunals are not separate departments of the government. Would that ruling still be
valid?
MR. AZCUNA. Yes, they are not separate departments because the separate departments
are the legislative, the executive and the judiciary; but they are constitutional bodies.39
The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by
our holding in Lopez v. Roxas, et al.:42
Section 1 of Republic Act No. 1793, which provides that:
"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect
and the vice-president-elect of the Philippines."
has the effect of giving said defeated candidate the legal right to contest judicially the election
of the President-elect of Vice-President-elect and to demand a recount of the votes case for
the office involved in the litigation, as well as to secure a judgment declaring that he is the
one elected president or vice-president, as the case may be, and that, as such, he is entitled
to assume the duties attached to said office. And by providing, further, that the Presidential
Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the
Supreme Court," said legislation has conferred upon such Court an additional original
jurisdiction of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon
the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the
enactment may be likened to the fact that courts of first instance perform the functions of
such ordinary courts of first instance, those of court of land registration, those of probate
courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the
situation obtaining when the municipal court of a provincial capital exercises its authority,
pursuant to law, over a limited number of cases which were previously within the exclusive
jurisdiction of courts of first instance.
In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well
as distinct and separate from, those of the same court acting as a court of land registration or
a probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially
more limited than that of the same court when hearing the aforementioned cases which are
primary within the jurisdiction of courts of first instance. In other words, there is only one
court, although it may perform the functions pertaining to several types of courts, each having
some characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are
both trial courts and, appellate courts, without detracting from the fact that there is only one
Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority
to discharge said dual functions. A court of first instance, when performing the functions of a
probate court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing ordinary
actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential
Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although the
functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court
in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793,
does not entail an assumption by Congress of the power of appointment vested by the
Constitution in the President. It merely connotes the imposition of additional duties upon the
Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court,
albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted
in implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not
unlawfully defies – the constitutional directive. The adoption of a separate seal, as well as the
change in the nomenclature of the Chief Justice and the Associate Justices into Chairman
and Members of the Tribunal, respectively, was designed simply to highlight the singularity
and exclusivity of the Tribunal’s functions as a special electoral court.
As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention
of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law
relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on
Elections. However, petitioner latches on to the enumeration in Buac which declared, in an
obiter, that "contests involving the President and the Vice-President fall within the exclusive
original jurisdiction of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution 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.
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" 44 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."45 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.1avvphi1
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.46
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,47Justice 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, 48 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 Maryland49 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.
One final note. Although this Court has no control over contrary people and naysayers, we
reiterate a word of caution against the filing of baseless petitions which only clog the Court’s
docket. The petition in the instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.

[G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the
Votes Cast for President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a
judgment declaring null and void the continued existence of the Joint Committee of Congress
(Joint Committee) to determine the authenticity and due execution of the certificates of canvass
and preliminarily canvass the votes cast for Presidential and Vice-Presidential candidates in the
May 10, 2004 elections following the adjournment of Congress sine die on June 11, 2004. The
petition corollarily prays for the issuance of a writ of prohibition directing the Joint Committee to
cease and desist from conducting any further proceedings pursuant to the Rules of the Joint
Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress
of its last regular session, [its] term ... terminated and expired on the said day and the said
Twelfth Congress serving the term 2001 to 2004 passed out of legal existence." Henceforth,
petitioner goes on, "all pending matters and proceedings terminate upon the expiration of ...
Congress." To advance this view, he relies on "legislative procedure, precedent or practice [as]
borne [out] by the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to put to rest all questions regarding
the regularity, validity or constitutionality of the canvassing of votes fro President and Vice-
President in the recently concluded national elections, this Court assumes jurisdiction over the
instant petition pursuant to its power and duty "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government" under Section 1 of Article VIII of the Constitution and its
original jurisdiction over petitions for prohibition under Section 5 of the same Article.
After a considered and judicious examination of the arguments raised by petitioner as well as
those presented in the Comments filed by the Solicitor General and respondent Joint
Committee, this Court finds that the petition has absolutely no basis under the Constitution and
must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or
practice [as] borne [out] by the rules of both Houses of Congress" is directly contradicted by
Section 42 of Rule XIV of the Rules adopted by the Senate, of which he is an incumbent
member. This section clearly provides that the Senate shall convene in joint session during
any voluntary or compulsory recess to canvass the votes for President and Vice-
President not later than thirty days after the day of the elections in accordance with Section 4,
Article VII of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint
Committee and that of the Office of the Solicitor General, the precedents set by the 1992 and
1998 Presidential Elections do not support the move to stop the ongoing canvassing by the Joint
Committee, they citing the observations of former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on
May 25, 1992. On June 16, 1992, the Joint Committee finished tallying the votes for President
and Vice-President.[1]cralaw Thereafter, on June 22, 1992, the Eighth Congress convened in
joint public session as the National Board of Canvassers, and on even date proclaimed Fidel V.
Ramos and Joseph Ejercito Estrada as President and Vice-President, respectively.[2]cralaw
Upon the other hand, during the 1998 Presidential elections, both Houses of Congress
adjourned sine dieon May 25, 1998. The Joint Committee completed the counting of the votes
for President and Vice-President on May 27, 1998.[3]cralaw The Tenth Congress then convened
in joint public session on May 29, 1998 as the National Board of Canvassers and proclaimed
Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as President and Vice-
President, respectively.[4]cralaw
As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of
Congress [a]re [i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment
[s]ine [d]ie [o]f [b]oth Houses of Congress [o]f [t]heir [r]egular [s]essions on June 11, 2004," he
cites in support thereof Section 15, Article VI of the Constitution which reads:
Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its
regular session, unless a different date is fixed by law, and shall continue to be in session for
such number of days as it may determine until thirty days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special
session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not
terminate and expire upon the adjournment sine die of the regular session of both Houses on
June 11, 2004.

Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of
Congress, but to its regular annual legislative sessions and the mandatory 30-day recess
before the opening of its next regular session (subject to the power of the President to call a
special session at any time).

Section 4 of Article VIII also of the Constitution clearly provides that "[t]he term of office of the
Senators shall be six years and shall commence, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election." Similarly, Section 7 of the same Article
provides that "[t]he Members of the House of Representatives shall be elected for
a term of three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election." Consequently, there being no law to the
contrary, until June 30, 2004, the present Twelfth Congress to which the present legislators
belong cannot be said to have "passed out of legal existence."

The legislative functions of the Twelfth Congress may have come to a close upon the final
adjournment of its regular sessions on June 11, 2004, but this does not affect its non-
legislative functions, such as that of being the National Board of Canvassers. In fact, the joint
public session of both Houses of Congress convened by express directive of Section 4, Article
VII of the Constitution to canvass the votes for and to proclaim the newly elected President and
Vice-President has not, and cannot, adjourn sine dieuntil it has accomplished its constitutionally
mandated tasks. For only when a board of canvassers has completed its functions is it
rendered functus officio. Its membership may change, but it retains its authority as a board until
it has accomplished its purposes. (Pelayo v. Commission on Elections, 23 SCRA 1374, 1385
[1968], citing Bautista v. Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on
Elections, L-28392, January 29 1968)

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

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

WHEREFORE, the instant Petition is hereby DISMISSED.

 From the beginning of his term, however, petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His sharp descent from power started on October
4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went
on air and accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million
EN BANC in jueteng money from Governor Singson from November 1998 to August 2000. He also
charged that the petitioner took from Governor Singson P70 million on excise tax on
G.R. No. 146710-15 March 2, 2001 cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino
Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint
JOSEPH E. ESTRADA, petitioner,
investigation.2
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES The House of Representatives did no less. The House Committee on Public Order and
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and Security, then headed by Representative Roilo Golez, decided to investigate the exposẻ of
ERNESTO B. FRANCISCO, JR., respondent. Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the petitioner.
----------------------------------------
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the
G.R. No. 146738 March 2, 2001
Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the
moral authority to govern.3 Two days later or on October 13, the Catholic Bishops Conference
JOSEPH E. ESTRADA, petitioner, of the Philippines joined the cry for the resignation of the petitioner. 4 Four days later, or on
vs. October 17, former President Corazon C. Aquino also demanded that the petitioner take the
GLORIA MACAPAGAL-ARROYO, respondent. "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the
chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the
PUNO, J.: Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo The heat was on. On November 1, four (4) senior economic advisers, members of the
claims she is the President. The warring personalities are important enough but more Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
transcendental are the constitutional issues embedded on the parties' dispute. While the former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington
significant issues are many, the jugular issue involves the relationship between the ruler and Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade
the ruled in a democracy, Philippine style. and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng
First, we take a view of the panorama of events that precipitated the crisis in the office of the Masang Pilipino.10
President.
The month of November ended with a big bang. In a tumultuous session on November 13,
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while House Speaker Villar transmitted the Articles of Impeachment11 signed by 115
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million representatives, or more than 1/3 of all the members of the House of Representatives to the
Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both Senate. This caused political convulsions in both houses of Congress. Senator Drilon was
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentebella.12 On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On December 7, the impeachment
trial started.14 The battle royale was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority Floor Leader Feliciano
Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul
Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel
Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by
now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo.
Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor
General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his
brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its
course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings
was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She
testified that she was one foot away from petitioner Estrada when he affixed the signature
"Jose Velarde" on documents involving a P500 million investment agreement with their bank
on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the
fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against the
opening of the second envelope which allegedly contained evidence showing that petitioner
held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned
as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands had assembled at the
EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the
eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance
with the impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of Representatives shall
have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted
the motion.20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's
solidarity in demanding petitioner's resignation. Students and teachers walked out of their
classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the
EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to
the holding of a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner
exploded in various parts of the country. To stem the tide of rage, petitioner announced he
was ordering his lawyers to agree to the opening of the highly controversial second
envelope.26There was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for
the peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando
Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-
Estrada protesters which resulted in stone-throwing and caused minor injuries. The
negotiations consumed all morning until the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang
Palace.29 He issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal
 minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter: 31
"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January
20.23 Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged
the powers the duties of the Presidency. On the same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo
to Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice — Acting on the urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001,
which request was treated as an administrative matter, the court Resolve
unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office
of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of
January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly
followed. On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of
the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.35 US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.36
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of
the House of Representatives to the administration of Her Excellency, Gloria Macapagal-
Arroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the
support of the House of Representatives to the assumption into office by Vice President
Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in the
attainment of the nation's goals under the Constitution."39
On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few
days later, she also signed into law the Political Advertising ban and Fair Election Practices
Act.41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce
Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending
challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for
the record" that she voted against the closure of the impeachment court on the grounds that
the Senate had failed to decide on the impeachment case and that the resolution left open
the question of whether Estrada was still qualified to run for another elective post. 48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The
survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60%
in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the
ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very
poor class.50
After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in
motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October
23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the
Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft
and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on
November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January
22, the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in
Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal
complaint that may be filed in his office, until after the term of petitioner as President is over
and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and
incumbent President of the Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her oath as and to be holding the
Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of
February 15."
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They
debunked the charge of counsel Saguisag that they have "compromised themselves by
indicating that they have thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in
G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice
issue a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court
under pain of being cited for contempt to refrain from making any comment or
discussing in public the merits of the cases at bar while they are still pending decision
by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in
his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days after the
hearing held on February 15, 2001, which action will make the cases at bar moot and
academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
 Assuming that the petitions present a justiciable controversy, whether petitioner
Estrada is a President on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of
prejudicial publicity.
We shall discuss the issues in seriatim.
I to settle actual controversies involving rights which are legally demandable and
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the presidency through people power; that she has
already taken her oath as the 14th President of the Republic; that she has exercised the
powers of the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket, which the Court cannot
enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to
lift the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in
the mills of constitutional law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question. Unless one of these
formulations is inextricable from the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence. The doctrine of which
we treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question.57 Our leading case
is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of this court not only
enforceable but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. 60With the new
provision, however, courts are given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Clearly, the new provision did not just grant
the Court power of doing nothing. In sync and symmetry with this intent are other
provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these
provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ (of habeas
corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases
will show that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the
Aquino government was installed through a direct exercise of the power of the Filipino
people "in defiance of the provisions of the 1973 Constitution, as amended." In is
familiar learning that the legitimacy of a government sired by a successful revolution by
people power is beyond judicial scrutiny for that government automatically orbits out of the
constitutional loop. In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the
1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.1âwphi1.nêt
In fine, the legal distinction between EDSA People Power I EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but EDSA II
is intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions. A brief discourse on
freedom of speech and of the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose
P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and
included it as among "the reforms sine quibus non."65 The Malolos Constitution, which is
the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos
shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing,
through the use of the press or other similar means; (2) of the right of association for
purposes of human life and which are not contrary to public means; and (3) of the right to
send petitions to the authorities, individually or collectively." These fundamental rights were
preserved when the United States acquired jurisdiction over the Philippines. In the
Instruction to the Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill,
the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29,
1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and
the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential
as a means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable
and hence, a more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress of a society can
take place without destroying the society."70In Hague v. Committee for Industrial
Organization,71 this function of free speech and assembly was echoed in the amicus
curiae filed by the Bill of Rights Committee of the American Bar Association which
emphasized that "the basis of the right of assembly is the substitution of the expression of
opinion and belief by talk rather than force; and this means talk for all and by all."72 In the
relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that "… it
should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the allocation
of governmental powers under section 1176 of Article VII. The issues likewise call for a ruling
on the scope of presidential immunity from suit. They also involve the correct calibration of
the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,77 the doctrine has been laid down that "it is emphatically the province and duty
of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the
Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office or resignation of
the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of
both the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as President
until the President or Vice President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Public. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must
be coupled by acts of relinquishment.78 The validity of a resignation is not government by
any formal requirement as to form. It can be oral. It can be written. It can be express. It can
be implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-
taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his act and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important to
follow the succession of events after the exposẻ of Governor Singson. The Senate Blue
Ribbon Committee investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of
Impeachment filed in the House of Representatives which initially was given a near cipher
chance of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful
political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare.
Senate President Drilon and former Speaker Villar defected with 47 representatives in tow.
Then, his respected senior economic advisers resigned together with his Secretary of Trade
and Industry.
As the political isolation of the petitioner worsened, the people's call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to paroxysms
of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada,"
the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The
Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were
worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc
committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary
Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito.
Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or
at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. The proposal for a snap election for president in May where
he would not be a candidate is an indicium that petitioner had intended to give up the
presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA
demonstrators demanding the resignation of the petitioner and dramatically announced the
AFP's withdrawal of support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option
of "dignified exit or resignation."81 Petitioner did not disagree but listened
intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated
to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would be allowed to go abroad with enough funds to
support him and his family.83 Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never leave the
country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was
already concerned with the five-day grace period he could stay in the palace. It was a
matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's
cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance
to the request. Secretary Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer of power. The resignation
of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee
of the safety of the petitioner and his family, and (3) the agreement to open the second
envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of
petitioner was not a disputed point. The petitioner cannot feign ignorance of this
fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the
petitioner, viz:
"x x x
I explain what happened during the first round of negotiations.
The President immediately stresses that he just wants the five-day period promised
by Reyes, as well as to open the second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
 The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit.
Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want
any more of this – it's too painful. I'm tired of the red tape, the bureaucracy, the
intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned. The intent to resign
is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of
resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson)
Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001,
that will be effective on Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the assumption of
the new administration shall commence, and persons designated by the Vice
President to various positions and offices of the government shall start their
orientation activities in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police authority effective
immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and
police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with
the alleged savings account of the President in the Equitable PCI Bank in
accordance with the rules of the Senate, pursuant to the request to the Senate
President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which
time President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guarantee freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities
– Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment
court will authorize the opening of the second envelope in the impeachment trial as
proof that the subject savings account does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the 'Transition Period"), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall
obtain all the necessary signatures as affixed to this agreement and insure faithful
implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form
and tenor provided for in "Annex A" heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner has resigned. It will
be noted that during this second round of negotiation, the resignation of the petitioner was
again treated as a given fact. The only unsettled points at that time were the measures to be
undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation
of the petitioner was further refined. It was then, signed by their side and he was ready to fax
it to General Reyes and Senator Pimentel to await the signature of the United Opposition.
However, the signing by the party of the respondent Arroyo was aborted by her oath-taking.
The Angara diary narrates the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the
five points to effect a peaceful transition. I can hear the general clearing all these
points with a group he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President
will assume the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice President
to various government positions shall start orientation activities with incumbent
officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority – Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for
in Annex "B" heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement,
signed by our side and awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has
decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you
wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the
part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this
matter is already moot and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been signed by myself, Dondon and
Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provisions on security, at least,
should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice
Davide will administer the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to some people inside the compound.
The president is having his final meal at the presidential Residence with the few
friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military
have already withdrawn their support for the President.
1 p.m. – The President's personal staff is rushing to pack as many of the Estrada
family's personal possessions as they can.
 During lunch, Ronnie Puno mentions that the president needs to release a final
statement before leaving Malacañang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by
his leaving Malacañang. In the press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the healing process of our nation. He
did not say he was leaving the Palace due to any kind inability and that he was going to re-
assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to
the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4) he assured that he will not shirk
from any future challenge that may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after occupying the office of the president which
he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The
press release was petitioner's valedictory, his final act of farewell. His presidency is now in
the part tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave dated
January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the Acting
president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the
petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led
to its preparation. Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as strange that the letter, despite
its legal value, was never referred to by the petitioner during the week-long crisis. To be sure,
there was not the slightest hint of its existence when he issued his final press release. It was
all too easy for him to tell the Filipino people in his press release that he was temporarily
unable to govern and that he was leaving the reins of government to respondent Arroyo for
the time bearing. Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of the petitioner
clearly as a later act. If, however, it was prepared after the press released, still, it commands
scant legal significance. Petitioner's resignation from the presidency cannot be the subject of
a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal
significance to petitioner's letter and this shall be discussed in issue number III of this
Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he
could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known
as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an
investigation, criminals or administrative, or pending a prosecution against him, for
any offense under this Act or under the provisions of the Revised Penal Code on
bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill,
when it was submitted to the Senate, did not contain a provision similar to section 12 of the
law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the
author of the bill, "reserved to propose during the period of amendments the inclusion of a
provision to the effect that no public official who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall be allowed to voluntarily resign or
retire."92 During the period of amendments, the following provision was inserted as section
15:
 "Sec. 15. Termination of office – No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against
him, for any offense under the Act or under the provisions of the Revised Penal Code
on bribery.
The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the President's immunity should extend
after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President, which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition
against the resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought to be obvious.
It is to prevent the act of resignation or retirement from being used by a public official as a
protective shield to stop the investigation of a pending criminal or administrative case against
him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under
the Revised Penal Code. To be sure, no person can be compelled to render service for that
would be a violation of his constitutional right.94 A public official has the right not to serve if he
really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public
official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against
him. He cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar,
the records show that when petitioner resigned on January 20, 2001, the cases filed against
him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-
1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for the reason that as
the sitting President then, petitioner was immune from suit. Technically, the said cases
cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them.
Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates
of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle
like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that,
under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature
of an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted
against the opening of the second envelope, the public and private prosecutors walked out,
the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on
the same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that "Congress has the ultimate authority under the Constitution to determine
whether the President is incapable of performing his functions in the manner provided for in
section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he
is a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet transmit within five days to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules
and without need of call.
 If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-
thirds vote of both Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the powers and duties
of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the
Senate President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President
on January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on
January 24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No.
17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT
GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT
OF THE NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of
former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice
President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on
20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had
extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President
of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a
policy of national healing and reconciliation with justice for the purpose of national
unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved
if it is divided, thus by reason of the constitutional duty of the House of
Representatives as an institution and that of the individual members thereof of fealty
to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all
efforts to unify the nation, to eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation and solidarity as it is a
direct representative of the various segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for the attainment of all
the foregoing, for the House of Representatives to extend its support and
collaboration to the administration of Her Excellency, President Gloria Macapagal-
Arroyo, and to be a constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of
the Philippines, to extend its congratulations and to express its support for her
administration as a partner in the attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with
integrity, competence and courage; who has served the Filipino people with
dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others,
as Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the Philippines – qualities which
merit his nomination to the position of Vice President of the Republic: Now, therefore,
be it
Resolved as it is hereby resolved by the House of Representatives, That the House
of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as
the Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12)
members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation
needs unity of purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative
measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of
President Gloria Macapagal-Arroyo and resolve to discharge and overcome the
nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S
NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true
statemanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
 (Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS
OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officioand has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered
approved.
Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval
thereof shall be made only upon written approval of the Senate president.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election
to be held simultaneously with the regular election on May 14, 2001 and the Senatorial
candidate garnering the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress
have recognized respondent Arroyo as the President. Implicitly clear in that
recognition is the premise that the inability of petitioner Estrada. Is no longer
temporary. Congress has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada
v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in
regard to which full discretionary authority has been delegated to the Legislative xxx branch
of the government." Or to use the language in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable and manageable standards for resolving it."
Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and
duties of the presidency. The question is political in nature and addressed solely to
Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court
without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely
unable to govern temporarily. That claim has been laid to rest by Congress and the
decision that respondent Arroyo is the de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of
suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history executive immunity will
be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a
case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the
respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General
of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the
Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to
deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice
Johnson, held:
 " The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law, could walk defiantly
abroad, destroying rights of person and of property, wholly free from interference of
courts or legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but must
submit in silence. On the contrary, it means, simply, that the governors-general, like
the judges if the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance
of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country, when his personal
or property rights have been invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can
a member of the Philippine Commission of the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official.
On the contrary, it clearly appears from the discussion heretofore had, particularly
that portion which touched the liability of judges and drew an analogy between such
liability and that of the Governor-General, that the latter is liable when he acts in a
case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is
held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgement, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, in determining the question of
his authority. If he decide wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two
such men could not honestly differ over its determination. In such case, be acts, not
as Governor-General but as a private individual, and as such must answer for the
consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz"xxx. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the state and for the office he occupies; a tendency to
unrest and disorder resulting in a way, in distrust as to the integrity of government itself." 105
Our 1935 Constitution took effect but it did not contain any specific provision on executive
immunity. Then came the tumult of the martial law years under the late President Ferdinand
E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and
All The King's Men: The Law of Privilege As a Defense To Actions For
Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty.
Pacificao Agabin, brightened the modifications effected by this constitutional amendment on
the existing law on executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging
and fortifying the absolute immunity concept. First, we extended it to shield the
President not only form civil claims but also from criminal cases and other claims.
Second, we enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or
private individuals, who acted upon orders of the President. It can be said that at that
point most of us were suffering from AIDS (or absolute immunity defense
syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept
of executive immunity in the 1973 Constitution. The move was led by them Member of
Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the principle that a public office is
a public trust. He denounced the immunity as a return to the anachronism "the king can do no
wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973 Constitution. The following explanation
was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out second sentence, at the very least, of the
 original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by
the 1973 Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would put a perpetual bar
against his prosecution. Such a submission has nothing to commend itself for it will place him
in a better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in
the Constitutional Commission make it clear that when impeachment proceedings have
become moot due to the resignation of the President, the proper criminal and civil cases may
already be filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed against
the President, for example, and the President resigns before judgement of conviction
has been rendered by the impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office,
then his resignation would render the case moot and academic. However, as the
provision says, the criminal and civil aspects of it may continue in the ordinary
courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case
of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different
factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the alleged mantle of
immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-tenure immunity from
liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful
acts and conditions. The rule is that unlawful acts of public officials are not acts of the State
and the officer who acts illegally is not acting as such but stands in the same footing as any
trespasser.114
Indeed, critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard
Nixon, a sitting President, was subpoenaed to produce certain recordings and documents
relating to his conversations with aids and advisers. Seven advisers of President Nixon's
associates were facing charges of conspiracy to obstruct Justice and other offenses, which
were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named
an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and that he should first
be impeached and removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair administration of criminal justice." In
the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity
of the president from civil damages covers only "official acts." Recently, the US Supreme
Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it
held that the US President's immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state policy that "the State shall maintain honesty
and integrity in the public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It
maintained the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "investigate on its
own, or on complaint by any person, any act or omission of any public official, employee,
office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.
V installed the jury system whose members are overly protected from publicity lest they
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is
all set file the criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the
rain of unrestrained publicity during the investigation and trial of high profile cases. 125 The
British approach the problem with the presumption that publicity will prejudice a jury. Thus,
English courts readily stay and stop criminal trials when the right of an accused to fair trial
suffers a threat.126 The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an accused to a fair
trial. They have developed different strains of tests to resolve this issue, i.e., substantial;
probability of irreparable harm, strong likelihood, clear and present danger, etc.
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.130 and its companion cases, viz:
This is not the first time the issue of trial by publicity has been raised in this Court to stop the
trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee,
Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the
doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then
and now, we rule that the right of an accused to a fair trial is not incompatible to a
free press. To be sure, responsible reporting enhances accused's right to a fair trial
for, as well pointed out, a responsible press has always been regarded as the
criminal field xxx. The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out of touch with the world. We have not
lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to litigation.
Their mere exposure to publications and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not show that the trial judge developed
actual bias against appellants as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not
prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.'
"Again petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its
early invocation considering the substantial risk to their liberty while undergoing a
preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be
avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary investigation
of the case at bar. Our daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public with views not too
many of which are sober and sublime. Indeed, even the principal actors in the case –
the NBI, the respondents, their lawyers and their sympathizers have participated in
this media blitz. The possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to the press and public.
In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws
were adopted, criminal trials both here and in England had long been
presumptively open, thus giving assurance that the proceedings were
conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when
a shocking crime occurs a community reaction of outrage and public protest
often follows, and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community concern, hostility and
emotion. To work effectively, it is important that society's criminal process
satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be
concluded that a presumption of openness inheres in the very nature of a
criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the
First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedom such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right
to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public
at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent
right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which the draftsmen deliberately linked it. A trial
courtroom is a public place where the people generally and representatives
of the media have a right to be present, and where their presence historically
has been thought to enhance the integrity and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms
guarantees to the public the right to attend criminal trials, various
fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First Amendment: without the
freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the
parties. The length of time the investigation was conducted despite its summary
nature and the generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did petitioners seek
the disqualification of any member of the DOJ Panel on the ground of bias resulting
from their bombardment of prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this
Court to enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden
of proof.131 He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against
the petitioner are still undergoing preliminary investigation by a special panel of prosecutors
in the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by
the barrage of slanted news reports, and he has buckled to the threats and pressures
directed at him by the mobs."132 News reports have also been quoted to establish that the
respondent Ombudsman has already prejudged the cases of the petitioner 133 and it is
postulated that the prosecutors investigating the petitioner will be influenced by this bias of
their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official duty
to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth,
our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to
make their own findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases
against the petitioner and the latter believes that the findings of probable cause against him is
the result of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

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

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as
Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture
and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural
Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as
Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment;
LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of
National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as
Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of
Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and
SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in
83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being
resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No.
284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member
of the Cabinet, undersecretary or assistant secretary or other appointive officials of
the Executive Department may, in addition to his primary position, hold not more than
two positions in the government and government corporations and receive the
corresponding compensation therefor; Provided, that this limitation shall not apply to
ad hoc bodies or committees, or to boards, councils or bodies of which the President
is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other
appointive official of the Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall any official hold more
than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned
or controlled corporations, at least one-third (1/3) of the members of the boards of
such corporation should either be a secretary, or undersecretary, or assistant
secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the
Cabinet, their undersecretaries and assistant secretaries to hold other government offices or
positions in addition to their primary positions, albeit subject to the limitation therein imposed,
runs counter to Section 13, Article VII of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list attached
to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment
during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive
Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No.
83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents therein to cease and desist from
holding, in addition to their primary positions, dual or multiple positions other than those
authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all amounts or benefits
that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary
of Justice Sedfrey Ordoñez, construing Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that
Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of government corporations: (a) when
directly provided for in the Constitution as in the case of the Secretary of Justice who is made
an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article
VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective
positions; and that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive
Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public
officers –– one, the President and her official family, and the other, public servants in general
–– allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional
rank assigned to the prohibition against multiple jobs for the President, the Vice-President,
the members of the Cabinet, and their deputies and subalterns, who are the leaders of
government expected to lead by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of
1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ
Opinion No. 155, series of 1988,10 being the first official construction and interpretation by the
Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ
Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ
Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the
limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to positions
which, although not so designated as ex-officio are allowed by the primary functions of the
public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on
the principal submission that it adds exceptions to Section 13, Article VII other than those
provided in the Constitution. According to petitioners, by virtue of the phrase "unless
otherwise provided in this Constitution," the only exceptions against holding any other office
or employment in Government are those provided in the Constitution, namely: (1) The Vice-
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-
XB on the Civil Service Commission applies to officers and employees of the Civil Service in
general and that said exceptions do not apply and cannot be extended to Section 13, Article
VII which applies specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of
the Cabinet and their deputies or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because of
the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII,
the exception must be expressly provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet under the second paragraph of
Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the
Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the Constitution" in Section 13, Article
VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of
the broad exceptions made for appointive officials in general under Section 7, par. (2), Article
I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the Constitution to
enact the particular provision and the purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to that reason and calculated to effect
that purpose.11
The practice of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation
of newly-created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential issuances
where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances
and other perquisites of office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-
enrichment. In fact, the holding of multiple offices in government was strongly denounced on
the floor of the Batasang Pambansa.12 This condemnation came in reaction to the published
report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and Commissions"
which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in
government service were the data contained therein that Roberto V. Ongpin was a member
of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen
each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve
(12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with
the Marcos regime. It was therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as
it was after the people successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are envisioned to remedy, if
not correct, the evils that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling points of the 1987 Constitution
during the campaign for its ratification was the assurance given by its proponents that the
scandalous practice of Cabinet members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains
a blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other offices or
employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees
from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian position in the
Government,including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not,
during said tenure, directly or indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official family, which
prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to treat the President and his official
family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor deliberations and debate that
there was no symmetry between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section
7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section
7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents
would have us do, would render nugatory and meaningless the manifest intent and purpose
of the framers of the Constitution to impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Executive Branch from the President
to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or
position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who,
under Section 13 of Article VII is allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of
Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any
public office or position during his tenure." Surely, to say that the phrase "unless otherwise
provided in this Constitution" found in Section 13, Article VII has reference to Section 7, par.
(1) of Article I-XB would render meaningless the specific provisions of the Constitution
authorizing the Vice-President to become a member of the Cabinet,15 and to act as President
without relinquishing the Vice-Presidency where the President shall not nave been chosen or
fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the
general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13,
Article VII.
It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution18 and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to
be a positive and unequivocal negation of the privilege of holding multiple government offices
or employment. Verily, wherever the language used in the constitution is prohibitory, it is to
be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officiomember of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts occupied
by the Executive officials specified therein without additional compensation in an ex-
officio capacity as provided by law and as required22 by the primary functions of said officials'
office. The reason is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition of additional
duties and functions on said officials.23 To characterize these posts otherwise would lead to
absurd consequences, among which are: The President of the Philippines cannot chair the
National Security Council reorganized under Executive Order No. 115 (December 24, 1986).
Neither can the Vice-President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit in this Council, which
would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his department for policy coordination
and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these
agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their
respective undersecretaries and assistant secretaries. The Central Bank Governor would
then be assisted by lower ranking employees in providing policy direction in the areas of
money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences.
A Constitution, viewed as a continuously operative charter of government, is not to be
interpreted as demanding the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law and
as required by the primary functions of the concerned official's office. The term ex-
officio means "from office; by virtue of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual character, but rather annexed
to the official position." Ex-officio likewise denotes an "act done in an official character, or as
a consequence of office, and without any other appointment or authority than that conferred
by the office."27 An ex-officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment.28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-
officioChairman of the Board of the Philippine Ports Authority,29 and the Light Rail Transit
Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board,31 thus: "An examination of section 2
of the questioned statute (R.A. 3137) reveals that for the chairman and members of the
Board to qualify they need only be designated by the respective department heads. With the
exception of the representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in the law. Thus,
for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely perform duties in
the Board in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus
means chief or principal function. The term is not restricted to the singular but may refer to
the plural.33 The additional duties must not only be closely related to, but must be required by
the official's primary functions. Examples of designations to positions by virtue of one's
primary functions are the Secretaries of Finance and Budget sitting as members of the
Monetary Board, and the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a member of the Board of the
Philippine Amusement and Gaming Corporation. The same rule applies to such positions
which confer on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet
Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge, expertise and
skill in their respective executive offices is a practice long-recognized in many jurisdictions. It
is a practice justified by the demands of efficiency, policy direction, continuity and
coordination among the different offices in the Executive Branch in the discharge of its
multifarious tasks of executing and implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is consistent with the power vested on
the President and his alter egos, the Cabinet members, to have control of all the executive
departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President
and his official family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required by their primary
functions, they would be supervision, thereby deprived of the means for control and resulting
in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such
additional duties or functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. It should be obvious that if, say,
the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any
extra compensation, whether it be in the form of a per them or an honorarium or an
allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner
Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of
the General Provisions, the exception "unless required by the functions of his
position,"36 express reference to certain high-ranking appointive public officials like members
of the Cabinet were made.37 Responding to a query of Commissioner Blas Ople,
Commissioner Monsod pointed out that there are instances when although not required by
current law, membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary functions. The example given by
Commissioner Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as authority for
saying that additional functions and duties flowing from the primary functions of the official
may be imposed upon him without offending the constitutional prohibition under
consideration, it cannot, however, be taken as authority for saying that this exception is by
virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners
took place in the plenary session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed article on General
Provisions.39 At that time, the article on the Civil Service Commission had been approved on
third reading on July 22, 1986,40 while the article on the Executive Department, containing the
more specific prohibition in Section 13, had also been earlier approved on third reading on
August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the matter.
What was primarily at issue and approved on that occasion was the adoption of the qualified
and delimited phrase "primary functions" as the basis of an exception to the general rule
covering all appointive public officials. Had the Constitutional Commission intended to dilute
the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section
13 to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official
family is by reason of the legal principles governing additional functions and duties of public
officials rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it
clear that only the additional functions and duties "required," as opposed to "allowed," by the
primary functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1Debates in
the constitutional convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to the views of the
large majority who did not talk, much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face."43 The proper interpretation therefore depends
more on how it was understood by the people adopting it than in the framers's understanding
thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks
to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants
from holding during their tenure multiple offices or employment in the government, except in
those cases specified in the Constitution itself and as above clarified with respect to posts
held without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on the general rule laid down for
all appointive officials should be considered as mere personal opinions which cannot override
the constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a
strict application of the prohibition mandated under Section 13, Article VII on the operations of
the Government, considering that Cabinet members would be stripped of their offices held in
an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier
clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of his
office do not fall under the definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or employment held by virtue of
legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences
are more apparent than real. Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized knowledge, skills and expertise.
If maximum benefits are to be derived from a department head's ability and expertise, he
should be allowed to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this concentration
of attention, knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and academic
as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de

facto officers and as such entitled to emoluments for actual services rendered. 46 It has been
held that "in cases where there is no de jure,officer, a de facto officer, who, in good faith has
had possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is, undoubtedly, supported
on equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services. 47 Any per
diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED.

Executive Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184740 February 11, 2010
DENNIS A. B. FUNA, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC.
LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of
Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her
official capacities as Undersecretary of the Department of Transportation and
Communications and as Officer-in-Charge of the Maritime Industry Authority
(MARINA), Respondents.
DECISION
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as
unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as
Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena
H. Bautista (Bautista) as Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as
Undersecretary for Maritime Transport of the department under Special Order No. 2006-171
dated October 23, 2006.1
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T.
Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator,
MARINA, in concurrent capacity as DOTC Undersecretary.2
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the constitutionality of Bautista’s
appointment/designation, which is proscribed by the prohibition on the President, Vice-
President, the Members of the Cabinet, and their deputies and assistants to hold any other
office or employment.
On January 5, 2009, during the pendency of this petition, Bautista was appointed
Administrator of the MARINA vice Vicente T. Suazo, Jr.3 and she assumed her duties and
responsibilities as such on February 2, 2009.4
The Case
Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA
OIC is in violation of Section 13, Article VII of the 1987 Constitution, as interpreted and
explained by this Court in Civil Liberties
Union v. Executive Secretary,5 and reiterated in Public Interest Center, Inc. v. Elma.6 He
points out that while it was clarified in Civil Liberties Union that the prohibition does not apply
to those positions held in ex-officio capacities, the position of MARINA Administrator is not
ex-officio to the post of DOTC Undersecretary, as can be gleaned from the provisions of its
charter, Presidential Decree (P.D.) No. 474,7 as amended by Executive Order (EO) No. 125-
A.8Moreover, the provisions on the DOTC in the Administrative Code of 1987, specifically
Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex-officio role for the
undersecretaries in any of the department’s attached agencies. The fact that Bautista was
extended an appointment naming her as OIC of MARINA shows that she does not occupy it
in an ex-officio capacity since an ex-officio position does not require any "further warrant or
appoint."9
Petitioner further contends that even if Bautista’s appointment or designation as OIC of
MARINA was intended to be merely temporary, still, such designation must not violate a
standing constitutional prohibition, citing the rationale in Achacoso v. Macaraig. 10 Section 13,
Article VII of the 1987 Constitution does not enumerate temporariness as one (1) of the
exceptions thereto. And since a temporary designation does not have a maximum duration, it
can go on for months or years. In effect, the temporary appointment/designation can
effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to
occupy other government posts would open a Pandora’s Box as to let them feast on choice
government positions. Thus, in case of vacancy where no permanent appointment could as
yet be made, the remedy would be to designate one (1) of the two (2) Deputy Administrators
as the Acting Administrator. Such would be the logical course, the said officers being in a
better position in terms of knowledge and experience to run the agency in a temporary
capacity. Should none of them merit the President’s confidence, then the practical remedy
would be for Undersecretary Bautista to first resign as Undersecretary in order to qualify her
as Administrator of MARINA. As to whether she in fact does not receive or has waived any
remuneration, the same does not matter because remuneration is not an element in
determining whether there has been a violation of Section 13, Article VII of the 1987
Constitution.11
Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary
and MARINA Administrator. The reason is that with respect to the affairs in the maritime
industry, the recommendations of the MARINA may be the subject of counter or opposing
recommendations from the Undersecretary for Maritime Transport. In this case, the DOTC
Undersecretary for Maritime Transport and the OIC of MARINA have become one (1) and the
same person. There is no more checking and counter-checking of powers and functions, and
therein lies the danger to the maritime industry. There is no longer a person above the
Administrator of MARINA who will be reviewing the acts of said agency because the person
who should be overseeing MARINA, the Undersecretary for Maritime Transport, has
effectively been compromised.12
Finally, petitioner contends that there is a strong possibility in this case that the challenge
herein can be rendered moot through the expediency of simply revoking the temporary
appointment/designation. But since a similar violation can be committed in the future, there
exists a possibility of "evading review," and hence supervening events should not prevent the
Court from deciding cases involving grave violation of the 1987 Constitution, as this Court
ruled in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there
is a compelling reason for this case to be decided: the issue raised being "capable of
repetition, yet evading review."13
On the other hand, the respondents argue that the requisites of a judicial inquiry are not
present in this case. In fact, there no longer exists an actual controversy that needs to be
resolved in view of the appointment of respondent Bautista as MARINA Administrator
effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for
Maritime Transport, which rendered the present petition moot and academic. Petitioner’s
prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and
academic since, with this supervening event, there is nothing left to enjoin.14
Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from
the standard set in Public Interest Center is the requirement that the party suing as a
taxpayer must prove that he has sufficient interest in preventing illegal expenditure of public
funds, and more particularly, his personal and substantial interest in the case. Petitioner,
however, has not alleged any personal or substantial interest in this case. Neither has he
claimed that public funds were actually disbursed in connection with respondent Bautista’s
designation as MARINA OIC. It is to be noted that respondent Bautista did not receive any
salary while she was MARINA OIC. As to the alleged transcendental importance of an issue,
this should not automatically confer legal standing on a party.15
Assuming for the sake of argument that the legal question raised herein needs to be
resolved, respondents submit that the petition should still be dismissed for being
unmeritorious considering that Bautista’s concurrent designation as MARINA OIC and DOTC
Undersecretary was constitutional. There was no violation of Section 13, Article VII of
the 1987 Constitution because respondent Bautista was merely designated acting head of
MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA
Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA
Administrator was left vacant, and pending the appointment of permanent Administrator,
respondent Bautista was designated OIC in a temporary capacity for the purpose of
preventing a hiatus in the discharge of official functions. Her case thus falls under the
recognized exceptions to the rule against multiple offices, i.e., without additional
compensation (she did not receive any emolument as MARINA OIC) and as required by the
primary functions of the office. Besides, Bautista held the position for four (4) months only, as
in fact when she was appointed MARINA Administrator on February 2, 2009, she
relinquished her post as DOTC Undersecretary for Maritime Transport, in acknowledgment of
the proscription on the holding of multiple offices.16
As to petitioner’s argument that the DOTC Undersecretary for Maritime Transport and
MARINA Administrator are incompatible offices, respondents cite the test laid down in People
v. Green,17 which held that "[T]he offices must subordinate, one [over] the other, and they
must, per se, have the right to interfere, one with the other, before they are compatible at
common law." Thus, respondents point out that any recommendation by the MARINA
Administrator concerning issues of policy and administration go to the MARINA Board and
not the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is,
in turn, under the direct supervision of the DOTC Secretary. Petitioner’s fear that there is no
longer a person above the Administrator of MARINA who will be reviewing the acts of said
agency (the Undersecretary for Maritime Transport) is, therefore, clearly unfounded.18
In his Reply, petitioner contends that respondents’ argument on the incompatibility of
positions was made on the mere assumption that the positions of DOTC Undersecretary for
Maritime Transport and the administratorship of MARINA are "closely related" and is
governed by Section 7, paragraph 2, Article IX-B of the 1987 Constitution rather than by
Section 13, Article VII. In other words, it was a mere secondary argument. The fact remains
that, incompatible or not, Section 13, Article VII still does not allow the herein challenged
designation.19
The sole issue to be resolved is whether or not the designation of respondent Bautista as
OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport
to which she had been appointed, violated the constitutional proscription against dual or
multiple offices for Cabinet Members and their deputies and assistants.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
The courts’ power of judicial review, like almost all other powers conferred by the
Constitution, is subject to several limitations, namely: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must
have "standing" to challenge; he must have a personal and substantial interest in the case,
such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.20 Respondents assert that the
second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21 The question on standing is whether such
parties have "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."22
In David v. Macapagal-Arroyo,23 summarizing the rules culled from jurisprudence, we held
that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators. [EMPHASIS SUPPLIED.]
Petitioner having alleged a grave violation of the constitutional prohibition against Members of
the Cabinet, their deputies and assistants holding two (2) or more positions in government,
the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to
sue for redress of such illegal act by public officials.
The other objection raised by the respondent is that the resolution of this case had been
overtaken by events considering the effectivity of respondent Bautista’s appointment as
MARINA Administrator effective February 2, 2009 and her relinquishment of her former
position as DOTC Undersecretary for Maritime Transport.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness.24 However, as we held in Public Interest Center, Inc. v. Elma,25supervening
events, whether intended or accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. Even in cases where supervening events had
made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues
raised to formulate controlling principles to guide the bench, bar, and public. 26
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review.27 In the present case, the mootness of the petition
does not bar its resolution. The question of the constitutionality of the President’s
appointment or designation of a Department Undersecretary as officer-in-charge of an
attached agency will arise in every such appointment.28
Undersecretary Bautista’s designation as MARINA OIC falls under the stricter prohibition
under Section 13, Article VII of the 1987 Constitution.
Resolution of the present controversy hinges on the correct application of Section 13, Article
VII of the 1987 Constitution, which provides:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
On the other hand, Section 7, paragraph (2), Article IX-B reads:
Sec. 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO
No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included
Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting
to two (2) the positions that appointive officials of the Executive Department may hold in
government and government corporations. Interpreting the above provisions in the light of the
history and times and the conditions and circumstances under which the Constitution was
framed, this Court struck down as unconstitutional said executive issuance, saying that it
actually allows them to hold multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987 Constitutionprohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.
Noting that the prohibition imposed on the President and his official family is all-embracing,
the disqualification was held to be absolute, as the holding of "any other office" is not
qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting
Senators and Members of the House of Representatives from holding "any other office or
employment in the Government"; and when compared with other officials and employees
such as members of the armed forces and civil service employees, we concluded thus:
These sweeping, all-embracing prohibitions imposed on the President and his official family,
which prohibitions are not similarly imposed on other public officials or employees such as
the Members of Congress, members of the civil service in general and members of the armed
forces, are proof of the intent of the 1987 Constitution to treat the President and his official
family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor deliberations and debate that
there was no symmetry between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore, more checks and restraints on
them are called for because there is more possibility of abuse in their case."
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet, their deputies
and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to
be a positive and unequivocal negation of the privilege of holding multiple government offices
or employment. Verily, wherever the language used in the constitution is prohibitory, it is to
be understood as intended to be a positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of
Section 8 (1), Article VIII.29 [EMPHASIS SUPPLIED.]
Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus
covered by the stricter prohibition under Section 13, Article VII and consequently she cannot
invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another
office is allowed by law or the primary functions of the position. Neither was she designated
OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties
Union.
The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive
officials specified therein, without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of said office. The reason is that
these posts do not comprise "any other office" within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on said
officials.30 Apart from their bare assertion that respondent Bautista did not receive any
compensation when she was OIC of MARINA, respondents failed to demonstrate clearly that
her designation as such OIC was in an ex-officio capacity as required by the primary
functions of her office as DOTC Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos on
June 1, 1974. It is mandated to undertake the following:
(a) Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early replacement of
obsolescent and uneconomic vessels; modernization and expansion of the Philippine
merchant fleet, enhancement of domestic capability for shipbuilding, repair and
maintenance; and the development of reservoir of trained manpower;
(b) Provide and help provide the necessary; (i) financial assistance to the industry
through public and private financing institutions and instrumentalities; (ii)
technological assistance; and (iii) in general, a favorable climate for expansion of
domestic and foreign investments in shipping enterprises; and
(c) Provide for the effective supervision, regulation and rationalization of the
organizational management, ownership and operations of all water transport utilities,
and other maritime enterprises.31
The management of MARINA is vested in the Maritime Administrator, who shall be directly
assisted by the Deputy Administrator for Planning and a Deputy Administrator for Operations,
who shall be appointed by the President for a term of six (6) years. The law likewise
prescribes the qualifications for the office, including such "adequate training and experience
in economics, technology, finance, law, management, public utility, or in other phases or
aspects of the maritime industry," and he or she is entitled to receive a fixed annual
salary.32 The Administrator shall be directly responsible to the Maritime Industry Board,
MARINA’s governing body, and shall have powers, functions and duties as provided in P.D.
No. 474, which provides, under Sections 11 and 12, for his or her general and specific
functions, respectively, as follows:
Sec. 11. General Powers and Functions of the Administrator. — Subject to the general
supervision and control of the Board, the Administrators shall have the following general
powers, functions and duties;
a. To implement, enforce and apply the policies, programs, standards, guidelines,
procedures, decisions and rules and regulations issued, prescribed or adopted by the
Board pursuant to this Decree;
b. To undertake researches, studies, investigations and other activities and projects,
on his own initiative or upon instructions of the Board, and to submit comprehensive
reports and appropriate recommendations to the Board for its information and action;
c. To undertake studies to determine present and future requirements for port
development including navigational aids, and improvement of waterways and
navigable waters in consultation with appropriate agencies;
d. To pursue continuing research and developmental programs on expansion and
modernization of the merchant fleet and supporting facilities taking into consideration
the needs of the domestic trade and the need of regional economic cooperation
schemes; and
e. To manage the affairs of the Authority subject to the provisions of this Decree and
applicable laws, orders, rules and regulations of other appropriate government
entities.
Sec. 12. Specific Powers and Functions of the Administrator. — In addition to his general
powers and functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels being used in Philippine
waters, including fishing vessels covered by Presidential Decree No. 43 except
transient civilian vessels of foreign registry, vessels owned and/or operated by the
Armed Forces of the Philippines or by foreign governments for military purposes, and
bancas, sailboats and other watercraft which are not motorized, of less than three
gross tons;
b. Provide a system of assisting various officers, professionals, technicians, skilled
workers and seamen to be gainfully employed in shipping enterprises, priority being
given to domestic needs;
c. In collaboration and coordination with the Department of Labor, to look into, and
promote improvements in the working conditions and terms of employment of the
officers and crew of vessels of Philippine registry, and of such officers and crew
members who are Philippine citizens and employed by foreign flag vessels, as well
as of personnel of other shipping enterprises, and to assist in the settlement of
disputes between the shipowners and ship operators and such officers and crew
members and between the owner or manager of other shipping enterprises and their
personnel;
d. To require any public water transport utility or Philippine flag vessels to provide
shipping services to any coastal areas in the country where such services are
necessary for the development of the area, to meet emergency sealift requirements,
or when public interest so requires;
e. Investigate by itself or with the assistance of other appropriate government
agencies or officials, or experts from the private sector, any matter within its
jurisdiction, except marine casualties or accidents which shall be undertaken by the
Philippine Coast Guard;
f. Impose, fix, collect and receive in accordance with the schedules approved by the
Board, from any shipping enterprise or other persons concerned, such fees and other
charges for the payment of its services;
g. Inspect, at least annually, the facilities of port and cargo operators and recommend
measures for adherence to prescribed standards of safety, quality and operations;
h. Approve the sale, lease or transfer of management of vessels owned by Philippine
Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the prevention of marine pollution in
bays, harbors and other navigable waters of the Philippines, in coordination with the
government authorities concerned;
j. Establish and maintain, in coordination with the appropriate government offices and
agencies, a system of regularly and promptly producing, collating, analyzing and
disseminating traffic flows, port operations, marine insurance services and other
information on maritime matters;
k. Recommend such measures as may be necessary for the regulation of the
importation into and exportation from the Philippines of vessels, their equipment and
spare parts;
l. Implement the rules and regulations issued by the Board of Transportation;
m. Compile and codify all maritime laws, orders, rules and regulations, decisions in
leasing cases of courts and the Authority’s procedures and other requirements
 relative to shipping and other shipping enterprises, make them available to the public,
and, whenever practicable to publish such materials;
n. Delegate his powers in writing to either of the Deputy Administrators or any other
ranking officials of the Authority; Provided, That he informs the Board of such
delegation promptly; and
o. Perform such other duties as the Board may assign, and such acts as may be
necessary and proper to implement this Decree.
With the creation of the Ministry (now Department) of Transportation and Communications by
virtue of EO No. 546, MARINA was attached to the DOTC for policy and program
coordination on July 23, 1979. Its regulatory function was likewise increased with the
issuance of EO No. 1011 which abolished the Board of Transportation and transferred the
quasi-judicial functions pertaining to water transportation to MARINA. On January 30, 1987,
EO No. 125 (amended by EO No. 125-A) was issued reorganizing the DOTC. The powers
and functions of the department and the agencies under its umbrella were defined, further
increasing the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise
known as the "The Domestic Shipping Development Act of 2004,"33 further strengthened
MARINA’s regulatory powers and functions in the shipping sector.
Given the vast responsibilities and scope of administration of the Authority, we are hardly
persuaded by respondents’ submission that respondent Bautista’s designation as OIC of
MARINA was merely an imposition of additional duties related to her primary position as
DOTC Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for
Maritime Transport is not even a member of the Maritime Industry Board, which includes the
DOTC Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the
following as members: Executive Secretary (Office of the President), Philippine Ports
Authority General Manager, Department of National Defense Secretary, Development Bank
of the Philippines General Manager, and the Department of Trade and Industry Secretary.34
Finally, the Court similarly finds respondents’ theory that being just a "designation," and
temporary at that, respondent Bautista was never really "appointed" as OIC Administrator of
MARINA, untenable. In Binamira v. Garrucho, Jr.,35 we distinguished between the terms
appointment and designation, as follows:
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, as where,
in the case before us, the Secretary of Tourism is designated Chairman of the Board of
Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices
of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of
the Senate or the House of Representatives. It is said that appointment is essentially
executive while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding
of the term. However, where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced at
will by the appointing authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person
named.36 [emphasis supplied.]
Clearly, respondents’ reliance on the foregoing definitions is misplaced considering that the
above-cited case addressed the issue of whether petitioner therein acquired valid title to the
disputed position and so had the right to security of tenure. It must be stressed though that
while the designation was in the nature of an acting and temporary capacity, the words "hold
the office" were employed. Such holding of office pertains to both appointment and
designation because the appointee or designate performs the duties and functions of the
office. The 1987 Constitution in prohibiting dual or multiple offices, as well as incompatible
offices, refers to the holding of the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13, Article VII nor in Section 7,
paragraph 2, Article IX-B. To "hold" an office means to "possess or occupy" the same, or "to
be in possession and administration,"37 which implies nothing less than the actual discharge
of the functions and duties of the office.1avvphi1
The disqualification laid down in Section 13, Article VII is aimed at preventing the
concentration of powers in the Executive Department officials, specifically the President,
Vice-President, Members of the Cabinet and their deputies and assistants. Civil Liberties
Union traced the history of the times and the conditions under which the Constitution was
framed, and construed the Constitution consistent with the object sought to be accomplished
by adoption of such provision, and the evils sought to be avoided or remedied. We recalled
the practice, during the Marcos regime, of designating members of the Cabinet, their deputies
and assistants as members of the governing bodies or boards of various government
agencies and instrumentalities, including government-owned or controlled corporations. This
practice of holding multiple offices or positions in the government led to abuses by
unscrupulous public officials, who took advantage of this scheme for purposes of self-
enrichment. The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in consonance with
the overwhelming sentiment of the people that the 1986 Constitutional Commission would
draft into the proposed Constitution the provisions under consideration, which were
envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment.38 Our declaration in that case cannot be more explicit:
But what is indeed significant is the fact that although Section 7, Article IX-B already contains
a blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other offices or
employment in the government or elsewhere is concerned.39 [emphasis supplied.]

Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the
semantics of respondents. It would open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in the Executive Department and of
limitations on the President’s power of appointment in the guise of temporary designations of
Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of
government agencies, instrumentalities, or government-owned or controlled corporations.

As to respondents’ contention that the concurrent positions of DOTC Undersecretary for

Maritime Transport and MARINA OIC Administrator are not incompatible offices, we find no
necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike
in the case of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v.
Elma.40 Therein we held that Section 13, Article VII is not applicable to the PCGG Chairman
or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or
assistant secretary.41

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H.

Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a
concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is
hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of
the 1987 Constitution and therefore, NULL and VOID.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT
CAPACITIES AS ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS
ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA,
OFFICE OF THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-
President, the Members of the Cabinet, and their deputies or assistants from holding any
other office or employment during their tenure unless otherwise provided in the Constitution.
Complementing the prohibition is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, which bans any appointive official from holding any other office or employment
in the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, unless otherwise allowed
by law or the primary functions of his position.
These prohibitions under the Constitution are at the core of this special civil action
for certiorari and prohibition commenced on April 7, 2010 to assail the designation of
respondent Hon. Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the
Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo
appointed Agra as the Acting Secretary of Justice following the resignation of Secretary
Agnes VST Devanadera in order to vie for a congressional seat in Quezon Province; that on
March 5, 2010, President Arroyo designated Agra as the Acting Solicitor General in a
concurrent capacity;1 that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a
concerned citizen and a lawyer, commenced this suit to challenge the constitutionality of
Agra’s concurrent appointments or designations, claiming it to be prohibited under Section
13, Article VII of the 1987 Constitution; that during the pendency of the suit, President
Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and
that Cadiz assumed as the Solicitor General and commenced his duties as such on August 5,
2010.2
Agra renders a different version of the antecedents. He represents that on January 12, 2010,
he was then the Government Corporate Counsel when President Arroyo designated him as
the Acting Solicitor General in place of Solicitor General Devanadera who had been
appointed as the Secretary of Justice;3 that on March 5, 2010, President Arroyo designated
him also as the Acting Secretary of Justice vice Secretary Devanadera who had meanwhile
tendered her resignation in order to run for Congress representing a district in Quezon
Province in the May 2010 elections; that he then relinquished his position as the Government
Corporate Counsel; and that pending the appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General. 4
Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for
purposes of resolving the constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition
and mandamus brought by herein petitioner assailing the constitutionality of the designation
of then Undersecretary of the Department of Transportation and Communications (DOTC)
Maria Elena H. Bautista as concurrently the Officer-in-Charge of the Maritime Industry
Authority. The petitioner has adopted here the arguments he advanced in Funa v. Ermita,
and he has rested his grounds of challenge mainly on the pronouncements in Civil Liberties
Union v. Executive Secretary6and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the appointments being
hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between
an appointment or designation of a Member of the Cabinet in an acting or temporary
capacity, on the one hand, and one in a permanent capacity, on the other hand; and that
Acting Secretaries, being nonetheless Members of the Cabinet, are not exempt from the
constitutional ban. He emphasizes that the position of the Solicitor General is not an ex
officio position in relation to the position of the Secretary of Justice, considering that the
Office of the Solicitor General (OSG) is an independent and autonomous office attached to
the Department of Justice (DOJ).8 He insists that the fact that Agra was extended an
appointment as the Acting Solicitor General shows that he did not occupy that office in an ex
officio capacity because an ex officio position does not require any further warrant or
appointment.
Respondents contend, in contrast, that Agra’s concurrent designations as the Acting
Secretary of Justice and Acting Solicitor General were only in a temporary capacity, the only
effect of which was to confer additional duties to him. Thus, as the Acting Solicitor General
and Acting Secretary of Justice, Agra was not "holding" both offices in the strict constitutional
sense.9 They argue that an appointment, to be covered by the constitutional prohibition, must
be regular and permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agra’s concurrent
designation constituted "holding of multiple offices," his continued service as the Acting
Solicitor General was akin to a hold-over; that upon Agra’s designation as the Acting
Secretary of Justice, his term as the Acting Solicitor General expired in view of the
constitutional prohibition against holding of multiple offices by the Members of the Cabinet;
that under the principle of hold-over, Agra continued his service as the Acting Solicitor
General "until his successor is elected and qualified"10 to "prevent a hiatus in the government
pending the time when a successor may be chosen and inducted into office;" 11 and that
during his continued service as the Acting Solicitor General, he did not receive any salaries
and emoluments from the OSG after becoming the Acting Secretary of Justice on March 5,
2010.12
Respondents point out that the OSG’s independence and autonomy are defined by the
powers and functions conferred to that office by law, not by the person appointed to head
such office;13 and that although the OSG is attached to the DOJ, the DOJ’s authority, control
and supervision over the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special circumstance" that
justified the non-application to Agra of Section 13, Article VII of the 1987 Constitution;15 that
the temporariness of the appointment or designation is not an excuse to disregard the
constitutional ban against holding of multiple offices by the Members of the Cabinet; 16 that
Agra’s invocation of the principle of hold-over is misplaced for being predicated upon an
erroneous presentation of a material fact as to the time of his designation as the Acting
Solicitor General and Acting Secretary of Justice; that Agra’s concurrent designations further
violated the Administrative Code of 1987 which mandates that the OSG shall be autonomous
and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position
of Acting Solicitor General, violate the constitutional prohibition against dual or multiple
offices for the Members of the Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case
or controversy calling for the exercise of judicial power; (2) the person challenging the act
must have the standing to assail the validity of the subject act or issuance, that is, he must
have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must
be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis
mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness for consideration and
resolution by the Court of the matter raised by the petitioner. Also, the locus standi of the
petitioner as a taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has
already been settled in his favor in rulings by the Court on several other public law litigations
he brought. In Funa v. Villar,19 for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted
liberally on the locus standi requirements and has accorded certain individuals, not
otherwise directly injured, or with material interest affected, by a Government act,
standing to sue provided a constitutional issue of critical significance is at stake. The
rule on locus standi is after all a mere procedural technicality in relation to which the
Court, in a catena of cases involving a subject of transcendental import, has waived, or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest, albeit they may not have been
personally injured by the operation of a law or any other government act. In David, the
Court laid out the bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the
election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of
infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-
reaching implications," and there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases. We, thus, assume a liberal
stance and allow petitioner to institute the instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit render this suit and the issue tendered
herein moot and academic?
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or
value.22 Although the controversy could have ceased due to the intervening appointment of
and assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the
issue of the constitutionality of the concurrent holding of the two positions by Agra, the Court
should still go forward and resolve the issue and not abstain from exercising its power of
judicial review because this case comes under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not desist from resolving an issue that a
supervening event meanwhile rendered moot and academic if any of the following recognized
exceptions obtained, namely: (1) there was a grave violation of the Constitution; (2) the case
involved a situation of exceptional character and was of paramount public interest; (3) the
constitutional issue raised required the formulation of controlling principles to guide the
Bench, the Bar and the public; and (4) the case was capable of repetition, yet evading
review.23
It is the same here. The constitutionality of the concurrent holding by Agra of the two
positions in the Cabinet, albeit in acting capacities, was an issue that comes under all the
recognized exceptions. The issue involves a probable violation of the Constitution, and
relates to a situation of exceptional character and of paramount public interest by reason of
its transcendental importance to the people. The resolution of the issue will also be of the
greatest value to the Bench and the Bar in view of the broad powers wielded through said
positions. The situation further calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many important and practical benefits are still
to be gained were the Court to proceed to the ultimate resolution of the constitutional issue
posed.
2.
Unconstitutionality of Agra’s concurrent designation as Acting Secretary of Justice
and Acting Solicitor General
At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:
Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a
case in which the petitioner herein also assailed the designation of DOTC Undersecretary as
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary26 on the intent of the
Framers behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the general rule applicable to all elective and
appointive public officials and employees, while Section 13, Article VII is meant to be
the exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to
be a positive and unequivocal negation of the privilege of holding multiple government offices
or employment. Verily, wherever the language used in the constitution is prohibitory, it is to
be understood as intended to be a positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer
only to those particular instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII;
or acting as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold
any other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agra’s designation was in an acting or temporary capacity. The text
of Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or
government controlled-corporations was concerned.28 In this regard, to hold an office means
to possess or to occupy the office, or to be in possession and administration of the office,
which implies nothing less than the actual discharge of the functions and duties of the
office.29 Indeed, in the language of Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or designation. The prohibition against dual or
multiple offices being held by one official must be construed as to apply to all appointments or
designations, whether permanent or temporary, for it is without question that the avowed
objective of Section 13, supra, is to prevent the concentration of powers in the Executive
Department officials, specifically the President, the Vice-President, the Members of the
Cabinet and their deputies and assistants.30 To construe differently is to "open the veritable
floodgates of circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the President’s power of appointment in the guise
of temporary designations of Cabinet Members, undersecretaries and assistant secretaries
as officers-in-charge of government agencies, instrumentalities, or government-owned or
controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the
holding of multiple offices are: (1) those provided for under the Constitution, such as Section
3, Article VII, authorizing the Vice President to become a member of the Cabinet; and (2)
posts occupied by Executive officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and as required by the primary
functions of the officials’ offices. In this regard, the decision in Public Interest Center, Inc. v.
Elma adverted to the resolution issued on August 1, 1991 in Civil Liberties Union v. The
Executive Secretary, whereby the Court held that the phrase "the Members of the Cabinet,
and their deputies or assistants" found in Section 13, supra, referred only to the heads of the
various executive departments, their undersecretaries and assistant secretaries, and did not
extend to other public officials given the rank of Secretary, Undersecretary or Assistant
Secretary.33 Hence, in Public Interest Center, Inc. v. Elma, the Court opined that the
prohibition under Section 13 did not cover Elma, a Presidential Assistant with the rank of
Undersecretary.34
It is equally remarkable, therefore, that Agra’s designation as the Acting Secretary of Justice
was not in an ex officio capacity, by which he would have been validly authorized to
concurrently hold the two positions due to the holding of one office being the consequence of
holding the other. Being included in the stricter prohibition embodied in Section 13, supra,
Agra cannot liberally apply in his favor the broad exceptions provided in Section 7, paragraph
2, Article IX-B of the Constitution ("Unless otherwise allowed by law or the primary functions
of his position") to justify his designation as Acting Secretary of Justice concurrently with his
designation as Acting Solicitor General, or vice versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article
VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the
1987 Constitution. To construe said qualifying phrase as respondents would have us do,
would render nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President, Members of the
Cabinet, their deputies and assistants with respect to holding other offices or employment in
the government during their tenure. Respondents’ interpretation that Section 13 of Article VII
admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the highranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand,
and the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their
tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his holding of the other
office was "allowed by law or the primary functions of his position." To claim the exemption of
his concurrent designations from the coverage of the stricter prohibition under Section
13, supra, he needed to establish herein that his concurrent designation was expressly
allowed by the Constitution. But, alas, he did not do so.
To be sure, Agra’s concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his
concurrent designations been in an ex officio capacity in relation to the other, the Court might
now be ruling in his favor.
The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority
derived from official character merely, not expressly conferred upon the individual character,
but rather annexed to the official position." Ex officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other appointment or
authority other than that conferred by the office." An ex officio member of a board is one who
is a member by virtue of his title to a certain office, and without further warrant or
appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to "provide the government
with a principal law agency which shall be both its legal counsel and prosecution arm;
administer the criminal justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders and administration of
the correctional system; implement the laws on the admission and stay of aliens, citizenship,
land titling system, and settlement of land problems involving small landowners and members
of indigenous cultural minorities; and provide free legal services to indigent members of the
society."37 The DOJ’s specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants in
criminal cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
(5) Investigate and arbitrate untitled land disputes involving small landowners and
members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned or controlled corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor
General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the President or
head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall discharge duties requiring the services
of lawyers. It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals in all
criminal proceedings; represent the Government and its officers in the Supreme
Court, the Court of Appeals, and all other courts or tribunals in all civil actions and
special proceedings in which the Government or any officer thereof in his official
capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against any person,
corporation or firm for the enforcement of any contract, bond, guarantee, mortgage,
pledge or other collateral executed in favor of the Government. Where proceedings
are to be conducted outside of the Philippines the Solicitor General may employ
counsel to assist in the discharge of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law, executive
order or proclamation, rule or regulation when in his judgment his intervention is
necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.
5. Represent the Government in all land registration and related proceedings.
Institute actions for the reversion to the Government of lands of the public domain
and improvements thereon as well as lands held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer of the National
Government, rules and guidelines for government entities governing the preparation
of contracts, making investments, undertaking of transactions, and drafting of forms
or other writings needed for official use, with the end in view of facilitating their
enforcement and insuring that they are entered into or prepared conformably with law
and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest
requires, any provincial or city fiscal to assist him in the performance of any function
or discharge of any duty incumbent upon him, within the jurisdiction of the aforesaid
provincial or city fiscal. When so deputized, the fiscal shall be under the control and
supervision of the Solicitor General with regard to the conduct of the proceedings
assigned to the fiscal, and he may be required to render reports or furnish information
regarding the assignment.
 8. Deputize legal officers of government departments, bureaus, agencies and offices
to assist the Solicitor General and appear or represent the Government in cased
involving their respective offices, brought before the courts and exercise supervision
and control over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or instrumentality of the
Government for such service, assistance and cooperation as may be necessary in
fulfilling its functions and responsibilities and for this purpose enlist the services of
any government official or employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and corporations to
whom the Office of the Solicitor General renders legal services are authorized to
disburse funds from their sundry operating and other funds for the latter Office. For
this purpose, the Solicitor General and his staff are specifically authorized to receive
allowances as may be provided by the Government offices, instrumentalities and
corporations concerned, in addition to their regular compensation.
11. Represent, upon the instructions of the President, the Republic of the Philippines
in international litigations, negotiations or conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the people before any court, tribunal, body
or commission in any matter, action or proceedings which, in his opinion affects the
welfare of the people as the ends of justice may require; and
13. Perform such other functions as may be provided by law. 39
The foregoing provisions of the applicable laws show that one position was not derived from
the other. Indeed, the powers and functions of the OSG are neither required by the primary
functions nor included by the powers of the DOJ, and vice versa. The OSG, while attached to
the DOJ,40 is not a constituent unit of the latter,41 as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and autonomous.42 With the enactment of
Republic Act No. 9417,43 the Solicitor General is now vested with a cabinet rank, and has the
same qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and
privileges as those of the Presiding Justice of the Court of Appeals. 44
Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to
bear. Apart from the sure peril of political pressure, the concurrent holding of the two
positions, even if they are not entirely incompatible, may affect sound government operations
and the proper performance of duties. Heed should be paid to what the Court has pointedly
observed in Civil Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are
to be derived from a department head’s ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may result in haphazardness and
inefficiency. Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a department head
spreading himself too thin and taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
not covered by the stricter prohibition under Section 13, supra, due to such position being
merely vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless
remained covered by the general prohibition under Section 7, supra. Hence, his concurrent
designations were still subject to the conditions under the latter constitutional provision. In
this regard, the Court aptly pointed out in Public Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987 Constitution permits an appointive
official to hold more than one office only if "allowed by law or by the primary functions of his
position." In the case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection
to a government official occupying two government offices and performing the functions of
both as long as there is no incompatibility." The crucial test in determining whether
incompatibility exists between two offices was laid out in People v. Green - whether one office
is subordinate to the other, in the sense that one office has the right to interfere with the
other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x
Where one office is not subordinate to the other, nor the relations of the one to the other such
as are inconsistent and repugnant, there is not that incompatibility from which the law
declares that the acceptance of the one is the vacation of the other. The force of the word, in
its application to this matter is, that from the nature and relations to each other, of the two
places, they ought not to be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and impartially discharge the
duties of one, toward the incumbent of the other. X x x The offices must subordinate, one
[over] the other, and they must, per se, have the right to interfere, one with the other, before
they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v.
Executive Secretary, this Court already clarified the scope of the prohibition provided in
Section 13, Article VII of the 1987 Constitution. Citing the case of US v. Mouat, it specifically
identified the persons who are affected by this prohibition as secretaries, undersecretaries
and assistant secretaries; and categorically excluded public officers who merely have the
rank of secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by
the constitutional prohibition. The persons cited in the constitutional provision are the
"Members of the Cabinet, their deputies and assistants." These terms must be given their
common and general acceptation as referring to the heads of the executive departments,
their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is
the Solicitor General affected thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a
secretary, undersecretary, nor an assistant secretary, even if the former may have the same
rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section 13, Article VII of
the 1987 Constitution to respondent Elma, he remains covered by the general prohibition
under Section 7, Article IX-B and his appointments must still comply with the standard of
compatibility of officers laid down therein; failing which, his appointments are hereby
pronounced in violation of the Constitution.47
Clearly, the primary functions of the Office of the Solicitor General are not related or
necessary to the primary functions of the Department of Justice. Considering that the nature
and duties of the two offices are such as to render it improper, from considerations of public
policy, for one person to retain both,48 an incompatibility between the offices exists, further
warranting the declaration of Agra’s designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting Solicitor General, to be void for being in
violation of the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra’s concurrent appointment; the de
facto officer doctrine
In view of the application of the stricter prohibition under Section 13, supra, Agra did not
validly hold the position of Acting Secretary of Justice concurrently with his holding of the
position of Acting Solicitor General. Accordingly, he was not to be considered as a de
jure officer for the entire period of his tenure as the Acting Secretary of Justice. A de
jure officer is one who is deemed, in all respects, legally appointed and qualified and whose
term of office has not expired.49
That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
Justice. In Civil Liberties Union v. Executive Secretary,50 the Court said:
During their tenure in the questioned positions, respondents may be considered de
facto officers and as such entitled to emoluments for actual services rendered. It has been
held that "in cases where there is no de jure, officer, a de facto officer, who, in good faith has
had possession of the office and has discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is, undoubtedly, supported
on equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face.51 He
may also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those of a de jure officer, in so far as the
public or third persons who are interested therein are concerned. 53
In order to be clear, therefore, the Court holds that all official actions of Agra as a de
facto Acting Secretary of Justice, assuming that was his later designation, were presumed
valid, binding and effective as if he was the officer legally appointed and qualified for the
office. 54 This clarification is necessary in order to protect the sanctity of the dealings by the
public with persons whose ostensible authority emanates from the State. 55 Agra's official
actions covered by this claritlcation extend to but are not limited to the promulgation of
resolutions on petitions for review filed in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative to the prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a
concurrent capacity with his position as the Acting Solicitor General for being unconstitutional
and violative of Section 13, Article VII of the 1987 Constitution; and DECLARES that l-Ion.
Alberto C. Agra was a de facto officer during his tenure as Acting Secretary of Justice.
No pronouncement on costs of suit.
SO ORDERED.

EN BANC
G.R. No. 147392 March 12, 2004
BENEDICTO ERNESTO R. BITONIO, JR., petitioner,
vs.
COMMISSION ON AUDIT and CELSO D. GANGAN, CHAIRMAN OF THE COMMISSION
ON AUDIT,respondents.
DECISION
CALLEJO, SR., J.:
The instant petition filed under Rule 64 of the Revised Rules of Court seeks the annulment of
the Decision1 of the Commission on Audit (COA) dated January 30, 2001 denying the
petitioner’s motion for the reconsideration of the COA Notices of Disallowance Nos. 98-008-
101 (95) and 98-017-101 (97) dated July 31, 1998 and October 9, 1998, respectively,
involving the per diems the petitioner received from the Philippine Economic Zone Authority
(PEZA). In order to avoid multiplicity of suits, an Amended Petition2 dated August 16, 2002
was later filed to include in the resolution of the instant petition Notice of Disallowance No.
98-003-101 (96) dated July 31, 1998 which was belatedly received by the petitioner on
August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV of the Bureau
of Labor Relations in the Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino S. Navarro, then Secretary
of the Department of Trade and Industry, Acting Secretary Jose S. Brilliantes of the
Department of Labor and Employment designated the petitioner to be the DOLE
representative to the Board of Directors of PEZA.3 Such designation was in pursuance to
Section 11 of Republic Act No. 7916, otherwise known as the Special Economic Zone Act of
1995, which provides:
Section 11. The Philippine Economic Zone Authority (PEZA) Board. – There is
hereby created a body corporate to be known as the Philippine Economic Zone
Authority (PEZA)…
…
The Board shall be composed of the Director General as ex officio chairman with
eight (8) members as follows: the Secretaries or their representatives of the
Department of Trade and Industry, the Department of Finance, the Department of
Labor and Employment, the Department of [the] Interior and Local Government, the
National Economic and Development Authority, and the Bangko Sentral ng Pilipinas,
one (1) representative from the labor sector, and one (1) representative from the
investor/business sector in the ECOZONE.
…
Members of the Board shall receive a per diem of not less than the amount
equivalent to the representation and transportation allowances of the members of the
Board and/or as may be determined by the Department of Budget and
Management: Provided, however, That the per diem collected per month does not
exceed the equivalent of four (4) meetings.
As representative of the Secretary of Labor to the PEZA, the petitioner was receiving a per
diem for every board meeting he attended during the years 1995 to 1997.
After a post audit of the PEZA’s disbursement transactions, the COA disallowed the payment
of per diems to the petitioner and thus issued the following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31, 1998 for the total sum
of P24,500 covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July 31, 1998 for a total
amount of P100,000 covering the period of January 1996 to January 1997;4
(c) Notice of Disallowance No. 98-017-101 (97) dated October 9, 1998 for the total
amount of P210,000 covering the period of February 1997 to January 1998.
The uniform reason for the disallowance was stated in the Notices, as follows:
Cabinet members, their deputies and assistants holding other offices in addition to
their primary office and to receive compensation therefore was declared
unconstitutional by the Supreme Court in the Civil Liberties Union vs. Executive
Secretary. Disallowance is in pursuance to COA Memorandum No. 97-038 dated
September 19, 1997 implementing Senate Committee Report No. 509. 5
On November 24, 1998, the petitioner filed his motion for reconsideration to the COA on the
following grounds:
1. The Supreme Court in its Resolution dated August 2, 1991 on the motion for
clarification filed by the Solicitor General modified its earlier ruling in the Civil
Liberties Union case which limits the prohibition to Cabinet Secretaries,
Undersecretaries and their Assistants. Officials given the rank equivalent to a
Secretary, Undersecretary or Assistant Secretary and other appointive officials below
the rank of Assistant Secretary are not covered by the prohibition.
2. Section 11 of R.A. No. 7916 provides the legal basis for the movant to receive per
diem. Said law was enacted in 1995, four years after the Civil Liberties Union case
became final. In expressly authorizing per diems, Congress should be conclusively
presumed to have been aware of the parameters of the constitutional prohibition as
interpreted in the Civil Liberties Union case.6
On January 30, 2001, the COA rendered the assailed decision denying petitioner’s motion for
reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly disallowed the per diems received
by the petitioner for his attendance in the PEZA Board of Directors’ meetings as
representative of the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems in the case of Civil Liberties Union v.
Executive Secretary7 where the Court declared Executive Order No. 2848 allowing
government officials to hold multiple positions in government, unconstitutional. Thus, Cabinet
Secretaries, Undersecretaries, and their Assistant Secretaries, are prohibited to hold other
government offices or positions in addition to their primary positions and to receive
compensation therefor, except in cases where the Constitution expressly provides. The
Court’s ruling was in conformity with Section 13, Article VII of the 1987 Constitution which
reads:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during their
tenure, directly or indirectly, practice any other profession, participate in any business
or be financially interested in any other contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency or instrumentality
thereof, including any government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of
the President shall not, during his tenure, be appointed as members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, Chairmen, or heads of bureaus or offices, including government-
owned or controlled corporations and subsidiaries.
Pursuant to the Court’s ruling in this case and the Senate Committee Report on the
Accountability of Public Officers and Investigations (Blue Ribbon),9 the COA issued
Memorandum No. 97-038 which authorized the issuance of the Notices of Disallowances for
the per diems received by the petitioner. It states:
The Commission received a copy of Senate Committee Report No. 509 urging "the
Commission on Audit to immediately cause the disallowance of any payment of any
form of additional compensation or remuneration to cabinet secretaries, their
deputies and assistants, or their representatives in violation of the rule on multiple
positions and to effect the refund of any and all such additional compensation given
to and received by the officials concerned, or their representatives, from the time of
the finality of the Supreme Court ruling in Civil Liberties Union vs. Executive
Secretary to the present." In the Civil Liberties Union case, the Supreme Court ruled
that Cabinet Secretaries, their deputies and assistants may not hold any other office
or employment. It declared Executive Order No. 284 unconstitutional insofar as it
allows Cabinet members, their deputies and assistants to hold other offices in
addition to their primary office and to receive compensation therefor. The said
decision became final and executory on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government
agencies and government-owned or controlled corporations which have effected
payment of subject allowances are directed to implement the recommendation
contained in the subject Senate Committee Report by undertaking the following audit
action: …10
The petitioner maintains that he is entitled to the payment of per diems, as R.A. No. 7916
specifically and categorically provides for the payment of a per diem for the attendance of the
members of the Board of Directors at board meetings of PEZA. The petitioner contends that
this law is presumed to be valid; unless and until the law is declared unconstitutional, it
remains in effect and binding for all intents and purposes. Neither can this law be rendered
nugatory on the basis of a mere memorandum circular – COA Memorandum No. 97-038
issued by the COA. The petitioner stresses that R.A. No. 7916 is a statute more superior than
an administrative directive and the former cannot just be repealed or amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four (4) years after the case of Civil
Liberties Union was promulgated. It is, therefore, assumed that the legislature, before
enacting a law, was aware of the prior holdings of the courts. Since the constitutionality or the
validity of R.A. No. 7916 was never challenged, the provision on the payment of per
diems remains in force notwithstanding the Civil Liberties Union case. Nonetheless, the
petitioner’s position as Director IV is not included in the enumeration of officials prohibited to
receive additional compensation as clarified in the Resolution of the Court dated August 1,
1991; thus, he is still entitled to receive the per diems.
The petitioner’s contentions are untenable.
It must be noted that the petitioner’s presence in the PEZA Board meetings is solely by virtue
of his capacity as representative of the Secretary of Labor. As the petitioner himself admitted,
there was no separate or special appointment for such position.11 Since the Secretary of
Labor is prohibited from receiving compensation for his additional office or employment, such
prohibition likewise applies to the petitioner who sat in the Board only in behalf of the
Secretary of Labor.
The petitioner’s case stands on all fours with the case of Dela Cruz v. Commission on
Audit.12 Here, the Court upheld the COA in disallowing the payment of honoraria and per
diems to the officers concerned who sat as members of the Board of Directors of the National
Housing Authority. The officers concerned sat as alternates of their superiors in an ex
officio capacity. Citing also the Civil Liberties Union case, the Court explained thus:
"The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services
are already paid for and covered by the compensation attached to his principal office.
It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining policy
in monetary banking matters, which come under the jurisdiction of his department.
For such attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per diem or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional
compensation is prohibited by the Constitution."
…
Since the Executive Department Secretaries, as ex-officio members of the NHA
Board, are prohibited from receiving "extra (additional) compensation, whether it be
in the form of a per diem or an honorarium or an allowance, or some other such
euphemism," it follows that petitioners who sit as their alternates cannot likewise be
entitled to receive such compensation. A contrary rule would give petitioners a better
right than their principals.13
Similarly in the case at bar, we cannot allow the petitioner who sat as representative of the
Secretary of Labor in the PEZA Board to have a better right than his principal. As the
representative of the Secretary of Labor, the petitioner sat in the Board in the same capacity
as his principal. Whatever laws and rules the member in the Board is covered, so is the
representative; and whatever prohibitions or restrictions the member is subjected, the
representative is, likewise, not exempted. Thus, his position as Director IV of the DOLE which
the petitioner claims is not covered by the constitutional prohibition set by the Civil Liberties
Union case is of no moment. The petitioner attended the board meetings by the authority
given to him by the Secretary of Labor to sit as his representative. If it were not for such
designation, the petitioner would not have been in the Board at all.
There is also no merit in the allegation that the legislature was certainly aware of the
parameters set by the Court when it enacted R.A. No. 7916, four (4) years after the finality of
the Civil Liberties Union case. The payment of per diems was clearly an express grant in
favor of the members of the Board of Directors which the petitioner is entitled to receive.
It is a basic tenet that any legislative enactment must not be repugnant to the highest law of
the land which is the Constitution. No law can render nugatory the Constitution because the
Constitution is more superior to a statute.14 If a law happens to infringe upon or violate the
fundamental law, courts of justice may step in to nullify its effectiveness. 15 It is the task of the
Court to see to it that the law must conform to the Constitution. In the clarificatory resolution
issued by the Court in the Civil Liberties Union case on August 1, 1991, the Court addressed
the issue as to the extent of the exercise of legislative prerogative, to wit:
The Solicitor General next asks: "x x x may the Decision then control or otherwise
encroach on the exclusive competence of the legislature to provide funds for a public
purpose, in terms of compensation or honoraria under existing laws, where in the
absence of such provision said laws would otherwise meet the terms of the
"exception by law?" Again, the question is anchored on a misperception. It must be
stressed that the so-called "exclusive competence of the legislature to provide funds
for a public purpose" or to enact all types of laws, for that matter, is not
unlimited. Such competence must be exercised within the framework of the
fundamental law from which the Legislature draws its power and with which
the resulting legislation or statute must conform. When the Court sets aside
legislation for being violative of the Constitution, it is not thereby substituting
its wisdom for that of the Legislature or encroaching upon the latter’s
prerogative, but again simply discharging its sacred task of safeguarding and
upholding the paramount law.
The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason why IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The assailed decision of the
the law was later amended by R.A. No. 874816 to cure such defect. In particular, Section 11 of COA is AFFIRMED.
R.A. No. 7916 was amended to read:
SO ORDERED.
SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. – There is
hereby created a body corporate to be known as the Philippine Economic Zone
Authority (PEZA) attached to the Department of Trade and Industry. The Board shall
have a director general with the rank of department undersecretary who shall be
appointed by the President. The director general shall be at least forty (40) years of
age, of proven probity and integrity, and a degree holder in any of the following fields:
economics, business, public administration, law, management or their equivalent,
and with at least ten (10) years relevant working experience preferably in the field of
management or public administration.

The director general shall be assisted by three (3) deputy directors general each for
policy and planning, administration and operations, who shall be appointed by the
PEZA Board, upon the recommendation of the director general. The deputy directors
general shall be at least thirty-five (35) years old, with proven probity and integrity
and a degree holder in any of the following fields: economics, business, public
administration, law, management or their equivalent.

The Board shall be composed of thirteen (13) members as follows: the Secretary
of the Department of Trade and Industry as Chairman, the Director General of the
Philippine Economic Zone Authority as Vice-chairman, the undersecretaries of the
Department of Finance, the Department of Labor and Employment, the Department
of [the] Interior and Local Government, the Department of Environment and Natural
Resources, the Department of Agriculture, the Department of Public Works and
Highways, the Department of Science and Technology, the Department of Energy,
the Deputy Director General of the National Economic and Development Authority,
one (1) representative from the labor sector, and one (1) representative from the
investors/business sector in the ECOZONE. In case of the unavailability of the
Secretary of the Department of Trade and Industry to attend a particular board
meeting, the Director General of PEZA shall act as Chairman. 17

As can be gleaned from above, the members of the Board of Directors was increased from 8
to 13, specifying therein that it is the undersecretaries of the different Departments who
should sit as board members of the PEZA. The option of designating his representative to the
Board by the different Cabinet Secretaries was deleted. Likewise, the last paragraph as to the
payment of per diems to the members of the Board of Directors was also deleted, considering
that such stipulation was clearly in conflict with the proscription set by the Constitution.

Prescinding from the above, the petitioner is, indeed, not entitled to receive a per diem for his
attendance at board meetings during his tenure as member of the Board of Director of the
PEZA.
 FIRST DIVISION
the pendency of this petition.[4] Respondent RonaldoZamora was sued in his official capacity
PUBLIC INTEREST CENTER INC., G. R. No. 138965
LAUREANO T. ANGELES, and as Executive Secretary.
JOCELYN P. CELESTINO,
Petitioners,
Pr es e n t: On 30 October 1998, respondent Elma was appointed and took his oath of office as
- versus - P AN G A NI B A N, CJ , * Chairman of the PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG
Ch a irm an,
YN A R E S - S ANT I AG O , * * Chairman, respondent Elma was appointed CPLC. He took his oath of office as CPLC the
MAGDANGAL B. ELMA, as Chief AU ST R I A - M A RT IN EZ ,
Presidential Legal Counsel and as CA L L EJ O , SR ., a n d following day, but he waived any remuneration that he may receive as CPLC.[5]
Chairman of the Presidential CH ICO - N AZ AR IO , J J .
Commission on Good Government,
and RONALDO ZAMORA, as Petitioners cited the case of Civil Liberties Union v. Executive Secretary [6] to support
Executive Secretary,
Respondents. Promulgated: their position that respondent Elmas concurrent appointments as PCGG Chairman and CPLC
contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution.
June 30, 2006
Petitioners also maintained that respondent Elma was holding incompatible offices.
x--------------------------------------------------x

Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary, respondents

DECISION
allege that the strict prohibition against holding multiple positions provided under Section 13,
Article VII of the 1987 Constitution applies only to heads of executive departments, their
CHICO-NAZARIO, J.:
undersecretaries and assistant secretaries; it does not cover other public officials given the
rank of Secretary, Undersecretary, or Assistant Secretary.
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that
Temporary Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.[1] This action
should be applied in their case. This provision, according to the respondents, would allow a
seeks to declare as null and void the concurrent appointments of respondent Magdangal B.
public officer to hold multiple positions if (1) the law allows the concurrent appointment of the
Elma as Chairman of the Presidential Commission on Good Government (PCGG) and as Chief
said official; and (2) the primary functions of either position allows such concurrent
Presidential Legal Counsel (CPLC) for being contrary to Section 13, [2] Article VII and Section
appointment. Respondents also alleged that since there exists a close relation between the
7, par. 2,[3]Article IX-B of the 1987 Constitution. In addition, the petitioners further seek the
two positions and there is no incompatibility between them, the primary functions of either
issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary
position would allow respondent Elmas concurrent appointments to both
restraining order to enjoin respondent Elma from holding and discharging the duties of both
positions. Respondents further add that the appointment of the CPLC among incumbent public
positions and from receiving any salaries, compensation or benefits from such positions during
officials is an accepted practice.

The resolution of this case had already been overtaken by supervening events.In 2001,
the appointees of former President Joseph Estrada were replaced by the appointees of the
incumbent president, Gloria Macapagal Arroyo. The present PCGG Chairman
is Camilo Sabio, while the position vacated by the last CPLC, now Solicitor General
Antonio Nachura, has not yet been filled. There no longer exists an actual controversy that
needs to be resolved. However, this case raises a significant legal question as yet unresolved
- whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of
this question requires the exercise of the Courts judicial power, more specifically its exclusive
and final authority to interpret laws. Moreover, the likelihood that the same substantive issue
raised in this case will be raised again compels this Court to resolve it.[8] The rule is that courts
will decide a question otherwise moot and academic if it is capable of repetition, yet evading
review.[9]
Supervening events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve the legal
or constitutional issues raised to formulate controlling principles to guide the bench, bar, and
public.[10]
The merits of this case may now be discussed.
The issue in this case is whether the position of the PCGG Chairman or that of the
CPLC falls under the prohibition against multiple offices imposed by Section 13, Article VII and
Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that:
Art. VII .
xxxx
Section 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. x x x
Art. IX-B.
xxxx
Section 7. No elective official shall be eligible for appointment or designation
in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v.
Executive Secretary,[11] construed the prohibition against multiple offices contained in Section
7, Article IX-B and Section 13, Article VII in this manner:
[T]hus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such
is allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if allowed by law or by the primary functions
of his position. In the case of Quimson v. Ozaeta,[12] this Court ruled that, [t]here is no legal
objection to a government official occupying two government offices and performing the
functions of both as long as there is no incompatibility. The crucial test in determining
whether incompatibility exists between two offices was laid out in People v. Green[13] - whether
one office is subordinate to the other, in the sense that one office has the right to interfere with
the other.

[I] nc om pat i b i l it y b et we en t wo of f ic es , is an i nc o ns is t e nc y i n th e
f unc t i o ns of t h e t wo ; x x x W her e o ne of f ic e is n ot s ub or d in at e
to th e ot h er , no r t he r e la t io ns of th e on e t o th e ot her s uc h as
are i nc ons is te n t a n d r ep u gn a nt , t h ere is n ot th at i nc om pat i b il i t y
f rom whic h th e l a w d e c l ar es t ha t th e ac c ep t anc e of t h e on e is
th e vac at i o n of th e ot h er .T h e f or c e of th e wor d, in i ts a pp l ic at i on
to th is m at t er is , th a t f r om the n at ur e an d r e la ti o ns t o e ac h ot h er,
of t h e t wo p l ac es , t he y o u gh t n ot t o b e h e ld b y t he s am e p ers o n,
f rom the c on tr ar i e t y a nd a nt a go n is m wh ic h wo u ld res u lt i n t h e
at tem pt b y on e p er s o n t o f a i thf u ll y a n d im p ar ti a l l y d is c har g e th e
du t ies of on e , to wa r d t h e i nc um b en t of t h e o th er . x x x T he
of f ic es m us t s u bo r d i na t e, o n e [ o ver ] t he o th er , a nd th e y
m us t, per s e, h a v e th e r i gh t t o i nt erf er e, o ne wi th t h e ot h er,
bef ore t h e y ar e i nc om pa t ib l e a t c om m on l a w. x x x
In t h is c as e , a n i nc o m pati b i l it y ex is ts be t we e n t h e p os i t io ns of t he
PC G G C ha irm an an d t he C PL C. T he du t i es of th e C P LC inc l ud e g i v i ng
i nd e pe n de nt an d im pa r ti a l l e ga l ad v ic e o n t h e ac t i o ns of th e h e ads of va ri o us
ex ec u ti v e de p artm en t s a n d a g enc i es a n d t o re v i e w i n ves t ig at i o n s in v o l v in g
he a ds of ex ec ut i v e d e par tm en ts an d a ge nc i es , as we l l as ot h er P res id e nt i a l
ap p o in te es . T h e PC G G is , wi t ho ut q u es t i o n , a n a g enc y u n der t he Ex ec ut i v e
De p artm en t. T hus , t h e ac ti o ns of th e PCG G C h a irm an ar e s u bj ec t t o t h e
r e v ie w of th e C P L C. I n M em or a n dum O r d er No . 1 5 2, is s ue d o n 9 J u l y 2 0 04 ,
th e O f f ic e of t he P r es i de nt , i n an ef f or t t o prom ot e ef f ic ie nc y a n d ef f ec t i ve
c oor d i na t io n , c l e ar l y d e li n ea t ed a nd s p ec if ie d t he f unc t io ns an d du ti es of its
s en i or of f ic ers as s uc h :
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and
provide the President with legal assistance on matters requiring her action,
including matters pertaining to legislation.
The CPLC shall have the following duties and functions:
a. Exercise administrative supervision over the Office of the CPLC;
b. Review and/or draft legal orders referred to her by the President on the
following matters that are subject of decisions of the President;
1. Executive Orders, proclamations, administrative orders,
memorandum orders, and other legal documents initiated
by the President;
2. Decision on investigation involving Cabinet Secretaries,
agency heads, or Presidential appointees with the rank of
Secretary conducted by the Presidential Anti-Graft
Commission (PAGC);[14]
As CPLC, respondent Elma will be required to give his legal opinion on his own actions as
PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft
Commission, which may involve himself as PCGG Chairman. In such cases, questions on his
impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing
the prohibition against holding incompatible offices.
Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the
concurrent appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they
are incompatible offices, this Court will proceed to determine whether such appointments
violate the other constitutional provision regarding multiple offices, Section 13, Article VII of the
1987 Constitution.
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective
and appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet
secretaries, undersecretaries and assistant secretaries. In the Resolution in Civil Liberties
Union v. Executive Secretary,[15] this Court already clarified the scope of the prohibition
provided in Section 13, Article VII of the 1987 Constitution. Citing the case of US v. Mouat[16],
it specifically identified the persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically excluded public officers who
merely have the rank of secretary, undersecretary or assistant secretary.

Another point of clarification raised by the Solicitor General refers to the
persons affected by the constitutional prohibition. The persons cited in the
constitutional provision are the Members of the Cabinet, their deputies and
assistants. These terms must be given their common and general acceptation
as referring to the heads of the executive departments, their undersecretaries
and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the
prohibition, nor is the Solicitor General affected thereby. (Underscoring
supplied.)
It is clear from the foregoing that the strict prohibition under Section 13, Article VII of
the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of
them is a secretary, undersecretary, nor an assistant secretary, even if the former may have
the same rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section 13,
Article VII of the 1987 Constitution to respondent Elma, he remains covered by the general
prohibition under Section 7, Article IX-B and his appointments must still comply with the
standard of compatibility of officers laid down therein; failing which, his appointments are
hereby pronounced in violation of the Constitution.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is
applicable to the present case, the defect in respondent Elmas concurrent appointments to the
incompatible offices of the PCGG Chairman and the CPLC would even be magnified when
seen through the more stringent requirements imposed by the said constitutional provision. In
the aforecited case Civil Liberties Union v. Executive Secretary,[17] the Court stressed that the
language of Section 13, Article VII is a definite and unequivocal negation of the privilege of
holding multiple offices or employment. The Court cautiously allowed only two exceptions to
the rule against multiple offices: (1) those provided for under the Constitution, such as Section
3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or (2) posts
occupied by the Executive officials specified in Section 13, Article VII without additional
compensation in an ex-officio capacity as provided by law and as required by the primary
functions of said officials office. The Court further qualified that additional duties must not only
be closely related to, but must be required by the officials primary functions. Moreover, the
additional post must be exercised in an ex-officio capacity, which denotes an act done in an
official character, or as a consequence of office, and without any other appointment or authority
than that conferred by the office.[18] Thus, it will not suffice that no additional compensation
shall be received by virtue of the second appointment, it is mandatory that the second post is
required by the primary functions of the first appointment and is exercised in an ex-
officio capacity.
With its forgoing qualifications, it is evident that even Section 13, Article VII does not
sanction this dual appointment. Appointment to the position of PCGG Chairman is not required
by the primary functions of the CPLC, and vice versa. The primary functions of the PCGG
Chairman involve the recovery of ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his family and associates, the investigation of graft and corruption cases assigned
to him by the President, and the adoption of measures to prevent the occurrence of
corruption.[19] On the other hand, the primary functions of the CPLC encompass a different
matter, that is, the review and/or drafting of legal orders referred to him by the President. [20] And
while respondent Elma did not receive additional compensation in connection with his position
as CPLC, he did not act as either CPLC or PGCC Chairman in an ex-officiocapacity. The fact
that a separate appointment had to be made for respondent Elma to qualify as CPLC negates
the premise that he is acting in an ex-officio capacity.
In s um , t h e pr o hi b it i on i n S ec t i o n 1 3, Art ic l e VI I of t he 1 98 7
Co ns t i tu t io n d o es n ot a p p l y t o r es p o nd e nt E lm a s i nc e ne i t her t he PC G G
Ch a irm an n or t he C P L C is a C a bi n et s ec re ta r y, un d ers ec re t ar y, or as s is t an t
s ec re t ar y. E ve n if t h is Co ur t as s um es , ar g u en d o, t ha t S ec t i on 1 3, Ar t ic l e V II
is a p pl ic a b le t o r es p o n de n t E lm a, h e s t i l l c o u l d n ot be ap p o in t ed c on c urr en t l y
to the of f ic es of the PCG G Chair m an and CPLC bec aus e neither of f ic e wa s

oc c u p i ed b y h im in a n ex - of fic i o c a p ac i t y, an d t he pr im ar y f u nc t i ons of on e

of f ic e d o n o t r eq u ir e a n a p p oi n tm ent to t he o th er pos t. Mor e o ve r, e v en if t h e

ap p o in tm e nts in q u es t i on ar e n ot c o v er ed b y S e c t i o n 13 , Ar tic l e VI I of t h e

19 8 7 C ons t it ut i o n, s ai d a p po i ntm en ts ar e s ti l l pro h i bi t ed un d er S ec t i on 7,

Ar t ic l e IX - B, wh ic h c o v er s a l l a pp o in t i v e an d e lec t i ve of f ic i a ls , d ue t o t he

i nc om pa t ib i l it y b et we e n t h e pr im ar y f u nc t i o ns of th e of f ic es of t he P CG G

Ch a irm an a nd t h e C PL C.

WHEREFORE, premises considered, this Court partly GRANTS this petition and
declares respondent Magdangal B. Elmas concurrent appointments as PCGG Chairman and
CPLC as UNCONSTITUTIONAL. No costs.

SO ORDERED.
 Republic of the Philippines PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;
SUPREME COURT NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR
Manila 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
EN BANC 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,
G.R. No. 191002 March 17, 2010
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY)
ARTURO M. DE CASTRO, Petitioner, SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG
vs. KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE
ARROYO, Respondents. OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN
x - - - - - - - - - - - - - - - - - - - - - - -x RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN
VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
G.R. No. 191032 (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and
LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE
JAIME N. SORIANO, Petitioner, PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA
vs. ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-
JUDICIAL AND BAR COUNCIL (JBC), Respondent. VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE
LEON. Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
G.R. No. 191342
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
vs. ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.
JUDICIAL AND BAR COUNCIL (JBC), Respondent. ROLAND B. INTING (IBPGovernor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
G.R. No. 191420
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO
APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
ARROYO, Respondents.
G.R. No. 191149
DECISION
JOHN G. PERALTA, Petitioner,
vs.
BERSAMIN, J.:
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just
days after the coming presidential elections on May 10, 2010. Even before the event actually
happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his
successor, considering that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments within two months
immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety? What is the relevance of Section 4 (1),
Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the
Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the
appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of
screening the candidates nominated or being considered to succeed Chief Justice Puno, and
submit the list of nominees to the incumbent President even during the period of the
prohibition under Section 15, Article VII? Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.
1910021 and G.R. No. 1911492 as special civil actions for certiorari and mandamus, praying
that the JBC be compelled to submit to the incumbent President the list of at least three
nominees for the position of the next Chief Justice.
In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition, proposes to prevent
the JBC from conducting its search, selection and nomination proceedings for the position of
Chief Justice.
mandamus,4
In G.R. No. 191057, a special civil action for the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of
Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010,
because the incumbent President is not covered by the prohibition that applies only to
appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor
General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier
filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the
Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to
enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice
to the President for appointment during the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
That question is undoubtedly impressed with transcendental importance to the Nation,
because the appointment of the Chief Justice is any President’s most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),7 by which the Court
held that Section 15, Article VII prohibited the exercise by the President of the power to
appoint to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed
by legal luminaries – one side holds that the incumbent President is prohibited from making
appointments within two months immediately before the coming presidential elections and
until the end of her term of office as President on June 30, 2010, while the other insists that
the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief Justice
during the election ban – has impelled the JBC to defer the decision to whom to send its list
of at least three nominees, whether to the incumbent President or to her successor.8 He
opines that the JBC is thereby arrogating unto itself "the judicial function that is not conferred
upon it by the Constitution," which has limited it to the task of recommending appointees to
the Judiciary, but has not empowered it to "finally resolve constitutional questions, which is
the power vested only in the Supreme Court under the Constitution." As such, he contends
that the JBC acted with grave abuse of discretion in deferring the submission of the list of
nominees to the President; and that a "final and definitive resolution of the constitutional
questions raised above would diffuse (sic) the tension in the legal community that would go a
long way to keep and maintain stability in the judiciary and the political system."9
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and selection process for the position of
Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position
of Chief Justice is the Supreme Court itself, the President’s authority being limited to the
appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in
the process, unless a nominee is not yet a Member of the Supreme Court.10
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox and
exceptional circumstances spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of
the Constitution" have bred "a frenzied inflammatory legal debate on the constitutional
provisions mentioned that has divided the bench and the bar and the general public as well,
because of its dimensional impact to the nation and the people," thereby fashioning
"transcendental questions or issues affecting the JBC’s proper exercise of its "principal
function of recommending appointees to the Judiciary" by submitting only to the President
(not to the next President) "a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy" from which the members of the Supreme Court and judges of the
lower courts may be appointed."11 PHILCONSA further believes and submits that now is the
time to revisit and review Valenzuela, the "strange and exotic Decision of the Court en
banc."12
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to
immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution" in the event that the Court
resolves that the President can appoint a Chief Justice even during the election ban under
Section 15, Article VII of the Constitution.13
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that
the "JBC has initiated the process of receiving applications for the position of Chief Justice
and has in fact begun the evaluation process for the applications to the position," and "is
perilously near completing the nomination process and coming up with a list of nominees for
submission to the President, entering into the period of the ban on midnight appointments on
March 10, 2010," which "only highlights the pressing and compelling need for a writ of
prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will
be cone within the period of the ban on midnight appointments."14
Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that "vacancy
shall be filled within ninety days from the occurrence thereof" from a "list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy."
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC,
addressed a letter to the JBC, requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution, 15 which
reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the
retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate on
the list of candidates; publish the names of candidates; accept comments on or opposition to
the applications; conduct public interviews of candidates; and prepare the shortlist of
candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views
on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation,
and published for that purpose its announcement dated January 20, 2010, 16 viz:
The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will
be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON.
REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4
February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and
The Philippine Star.17
Conformably with its existing practice, the JBC "automatically considered" for the position of
Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate
Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita
Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio
Eduardo B. Nachura. However, the last two declined their nomination through letters dated
January 18, 2010 and January 25, 2010, respectively.18
Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman
for Luzon, applied, but later formally withdrew his name from consideration through his letter
dated February 8, 2010. Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro;
Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval
(Sandiganbayan). Candidates who accepted their nominations with conditions were
Associate Justice Antonio T. Carpio and Associate Justice Conchita Carpio
Morales.19 Declining their nominations were Atty. Henry Villarica (via telephone conversation
with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr.
(via telephone conversation with the Executive Officer of the JBC on February 8, 2010).20
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet
the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office
of the Ombudsman (due to cases pending in the Office of the Ombudsman). 21
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine
Star issues of February 13, 2010.22
Issues
Although it has already begun the process for the filling of the position of Chief Justice Puno
in accordance with its rules, the JBC is not yet decided on when to submit to the President its
list of nominees for the position due to the controversy now before us being yet unresolved.
In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy
occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but
also among non-legal quarters, and brought out highly disparate opinions on whether the
incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the
Court addressed this issue now before us as an administrative matter "to avoid any possible
polemics concerning the matter," but he opines that the polemics leading to Valenzuela
"would be miniscule [sic] compared to the "polemics" that have now erupted in regard to the
current controversy," and that unless "put to a halt, and this may only be achieved by a ruling
from the Court, the integrity of the process and the credibility of whoever is appointed to the
position of Chief Justice, may irreparably be impaired." 23
Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional question
of whether the incumbent President can appoint a Chief Justice during the election
ban period?
b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of
Chief Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15, Article VII of
the Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also
applies to members of the Judiciary, may such appointments be excepted because
they are impressed with public interest or are demanded by the exigencies of public
service, thereby justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and submit
the names of nominees who manifested interest to be nominated for the position of
Chief Justice on the understanding that his/her nomination will be submitted to the
next President in view of the prohibition against presidential appointments from
March 11, 2010 until June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to positions
in the Judiciary under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after
March 10, 2010, including that for the position of Chief Justice after Chief Justice
Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short list to
President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBC's illegal
composition allowing each member from the Senate and the House of
Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General
(OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage
of the process for the selection of the nominees for the position of Chief Justice would be the
public interview of the candidates and the preparation of the short list of candidates,
"including the interview of the constitutional experts, as may be needed." 24 It stated:25
Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper
appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential
appointments "two (2) months immediately before the next presidential elections and up to
the end of his term" and Section 261 (g), Article XXII of the Omnibus Election Code of the
Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC
will be guided by its decision in these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement by
May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBC's function to recommend is a "continuing process," which does not
begin with each vacancy or end with each nomination, because the goal is "to submit the list
of nominees to Malacañang on the very day the vacancy arises";26 the JBC was thus acting
within its jurisdiction when it commenced and set in motion the process of selecting the
nominees to be submitted to the President for the position of Chief Justice to be vacated by
Chief Justice Puno;27 (c) petitioner Soriano's theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his
misinterpretation of the phrase "members of the Supreme Court" found in Section 9, Article
VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the
Chief Justice; 28 (d) a writ of mandamus can issue to compel the JBC to submit the list of
nominees to the President, considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who has the authority to appoint
the next Chief Justice and, therefore, has no discretion to withhold the list from the
President; 29 and (e) a writ of mandamus cannot issue to compel the JBC to include or
exclude particular candidates as nominees, considering that there is no imperative duty on its
part to include in or exclude from the list particular individuals, but, on the contrary, the JBC's
determination of who it nominates to the President is an exercise of a discretionary duty.30
The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply to
appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must
be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; 31 that in their deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor referred to the ban against
midnight appointments, or its effects on such period, or vice versa;32 that had the framers
intended the prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found in Article VII
(Executive Department) was not written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or limitations on the President's
power to appoint members of the Supreme Court to ensure its independence from "political
vicissitudes" and its "insulation from political pressures,"33 such as stringent qualifications for
the positions, the establishment of the JBC, the specified period within which the President
shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges, the
situation now refers to the appointment of the next Chief Justice to which the prohibition does
not apply; that, at any rate, Valenzuela even recognized that there might be "the imperative
need for an appointment during the period of the ban," like when the membership of the
Supreme Court should be "so reduced that it will have no quorum, or should the voting on a
particular important question requiring expeditious resolution be divided"; 34 and that
Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the
public interest, most especially if there is any compelling reason to justify the making of the
appointments during the period of the prohibition.35
Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent
President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive
political issues is "quite expected";36 (b) the Court acts as the Presidential Electoral Tribunal
(PET), which, sitting en banc, is the sole judge of all contests relating to the election, returns,
and qualifications of the President and Vice President and, as such, has "the power to correct
manifest errors on the statement of votes (SOV) and certificates of canvass (COC)";37 (c) if
history has shown that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there
is now even more reason to appoint the next Chief Justice immediately upon the retirement of
Chief Justice Puno;38 and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate.39
On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to
wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving
Corvera (Corvera);40
 (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert
S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr.
(Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National
Union of People's Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano
(Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of
BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS)
Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the
Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of
the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta
Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the
Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castro's petition was bereft of any basis, because under Section 15, Article
VII, the outgoing President is constitutionally banned from making any appointments from
March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief
Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of
nominees to the outgoing President if the constitutional prohibition is already in effect. Tan
adds that the prohibition against midnight appointments was applied by the Court to the
appointments to the Judiciary made by then President Ramos, with the Court holding that the
duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for
the Supreme Court) or from the submission of the list (for all other courts) was not an excuse
to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the
insistence that Valenzuela recognizes the possibility that the President may appoint the next
Chief Justice if exigent circumstances warrant the appointment, because that recognition
is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice
does not cause epic damage or absolute disruption or paralysis in the operations of the
Judiciary. They insist that even without the successor of Chief Justice Puno being appointed
by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of
three, five or seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castro's fears are unfounded and baseless, being based on a
mere possibility, the occurrence of which is entirely unsure; that it is not in the national
interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void;
and that such a situation will create a crisis in the judicial system and will worsen an already
vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law
on filling the void brought about by a vacancy in the office of Chief Justice; that the law is
Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa
Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to
judicial independence; that the designation of an acting Chief Justice is not only provided for
by law, but is also dictated by practical necessity; that the practice was intended to be
enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the
Constitution on account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan,
Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his
official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief
Justice was acknowledged and even used by analogy in the case of the vacancy of the
Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that
the history of the Supreme Court has shown that this rule of succession has been repeatedly
observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election
Code penalizes as an election offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or privilege to any government
official or employee during the period of 45 days before a regular election; that the provision
covers all appointing heads, officials, and officers of a government office, agency or
instrumentality, including the President; that for the incumbent President to appoint the next
Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under
the Omnibus Election Code, constitutes an election offense; that even an appointment of the
next Chief Justice prior to the election ban is fundamentally invalid and without effect
because there can be no appointment until a vacancy occurs; and that the vacancy for the
position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by the
JBC to the incumbent President is off-tangent because the position of Chief Justice is still not
vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs
is glaringly premature; that the proposed advance appointment by the incumbent President of
the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted
by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between
the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled
that the appointments by the President of the two judges during the prohibition period were
void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply
only to the appointments in the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that
Valenzuela already interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's contention that the power to appoint
the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless,
because the Chief Justice is also a Member of the Supreme Court as contemplated under
Section 9, Article VIII; and that, at any rate, the term "members" was interpreted in Vargas v.
Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate
Justices of the Supreme Court; that PHILCONSA's prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with conditions, shall not
be considered nominees by the JBC is diametrically opposed to the arguments in the body of
its petition; that such glaring inconsistency between the allegations in the body and the relief
prayed for highlights the lack of merit of PHILCONSA's petition; that the role of the JBC
cannot be separated from the constitutional prohibition on the President; and that the Court
must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the
next duly elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC - because it is neither a judicial nor a quasi-
judicial body - has no duty under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the period of prohibition; that even if
the JBC has already come up with a short list, it still has to bow to the strict limitations under
Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating
unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and
that the application of the general rule in Section 15, Article VII to the Judiciary does not
violate the principle of separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC's act of nominating
appointees to the Supreme Court is purely ministerial and does not involve the exercise of
judgment; that there can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the process
of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from
the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any
party to claim that the submission or non-submission of the list of nominees to the President
by the JBC is a matter of right under law.
The main question presented in all the filings herein - because it involves two seemingly
conflicting provisions of the Constitution - imperatively demands the attention and resolution
of this Court, the only authority that can resolve the question definitively and finally. The
imperative demand rests on the ever-present need, first, to safeguard the independence,
reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has
been unnecessarily dragged into the harsh polemics brought on by the controversy; second,
to settle once and for all the doubt about an outgoing President's power to appoint to the
Judiciary within the long period starting two months before the presidential elections until the
end of the presidential term; and third, to set a definite guideline for the JBC to follow in the
discharge of its primary office of screening and nominating qualified persons for appointment
to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as "a right of appearance in a court of justice on a given
question."41 In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to regulate
the invocation of the intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a personal stake in the
outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:42
The question on legal standing is whether such parties have "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."43 Accordingly, it has been held that the interest of a person
assailing the constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.44
It is true that as early as in 1937, in People v. Vera,45 the Court adopted the direct injury test
for determining whether a petitioner in a public action had locus standi. There, the Court held
that the person who would assail the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." Vera was followed in Custodio v. President of the Senate,46 Manila Race Horse
Trainers' Association v. De la Fuente,47 Anti-Chinese League of the Philippines v.
Felix,48 and Pascual v. Secretary of Public Works.49
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in
1949, in Araneta v. Dinglasan,50 the Court liberalized the approach when the cases had
"transcendental importance." Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.51
In the 1975 decision in Aquino v. Commission on Elections,52 this Court decided to resolve
the issues raised by the petition due to their "far-reaching implications," even if the petitioner
had no personality to file the suit. The liberal approach of Aquino v. Commission on
Elections has been adopted in several notable cases, permitting ordinary citizens, legislators,
and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations,
and rulings.53
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected
by the action complained against as are others, it is enough that he sufficiently demonstrates
in his petition that he is entitled to protection or relief from the Court in the vindication of a
public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain
locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest to
sue. In David v. Macapagal-Arroyo,54 the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,55 where it was held that the
plaintiff in a taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:56 "In matter of mere public right, however…the
people are the real parties…It is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan57 held that
"the right of a citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No.
191149) all assert their right as citizens filing their petitions on behalf of the public who are
directly affected by the issue of the appointment of the next Chief Justice. De Castro and
Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve "unnecessary, if not, illegal disbursement of
public funds."59
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law
for the purpose of defending, protecting, and preserving the Constitution and promoting its
growth and flowering. It also alleges that the Court has recognized its legal standing to file
cases on constitutional issues in several cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of
the Philippine Bar engaged in the active practice of law, and a former Solicitor General,
former Minister of Justice, former Member of the Interim Batasang Pambansa and the
Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines
(IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal standing
to enjoin the submission of the list of nominees by the JBC to the President, for "[a]n
adjudication of the proper interpretation and application of the constitutional ban on midnight
appointments with regard to respondent JBC's function in submitting the list of nominees is
well within the concern of petitioners, who are duty bound to ensure that obedience and
respect for the Constitution is upheld, most especially by government offices, such as
respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme
of our democratic institution." They further allege that, reposed in them as members of the
Bar, is a clear legal interest in the process of selecting the members of the Supreme Court,
and in the selection of the Chief Justice, considering that the person appointed becomes a
member of the body that has constitutional supervision and authority over them and other
members of the legal profession.61
The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues before
us are of transcendental importance to the people as a whole, and to the petitioners in
particular. Indeed, the issues affect everyone (including the petitioners), regardless of one's
personal interest in life, because they concern that great doubt about the authority of the
incumbent President to appoint not only the successor of the retiring incumbent Chief Justice,
but also others who may serve in the Judiciary, which already suffers from a far too great
number of vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing
in favor of any petitioner when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.62
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now
in order to remove any obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from discharging our solemn duty by reason
alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air
Terminals Co., Inc.,63 we pointed out: "Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest." But even if, strictly speaking, the petitioners
"are not covered by the definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and resolving the serious
constitutional questions raised."64
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or
ripe for adjudication, considering that although the selection process commenced by the JBC
is going on, there is yet no final list of nominees; hence, there is no imminent controversy as
to whether such list must be submitted to the incumbent President, or reserved for
submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro's petition rests on an overbroad
and vague allegation of political tension, which is insufficient basis for the Court to exercise
its power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on
what the JBC and the President should do, and are not invoking any issues that are
justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of
opposite legal claims in any of the petitions; that PHILCONSA does not allege any action
taken by the JBC, but simply avers that the conditional manifestations of two Members of the
Court, accented by the divided opinions and interpretations of legal experts, or associations
of lawyers and law students on the issues published in the daily newspapers are "matters of
paramount and transcendental importance to the bench, bar and general public"; that
PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but
also to indicate what specific action should be done by the JBC; that Mendoza does not even
attempt to portray the matter as a controversy or conflict of rights, but, instead, prays that the
Court should "rule for the guidance of" the JBC; that the fact that the Court supervises the
JBC does not automatically imply that the Court can rule on the issues presented in the
Mendoza petition, because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with prescribed rules,
then, and only then, may the person exercising oversight order the action to be redone to
conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has
performed a specific act susceptible to correction for being illegal or unconstitutional; and that
the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the state of the law in the
absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President for
consideration of which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the process of nomination
pursuant to its rules and practices, although it has yet to decide whether to submit the list of
nominees to the incumbent outgoing President or to the next President, makes the situation
ripe for judicial determination, because the next steps are the public interview of the
candidates, the preparation of the short list of candidates, and the "interview of constitutional
experts, as may be needed."
A part of the question to be reviewed by the Court is whether the JBC properly initiated the
process, there being an insistence from some of the oppositors-intervenors that the JBC
could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is,
of course, whether the JBC may resume its process until the short list is prepared, in view of
the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint
one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to continue the
process until the submission of the list of nominees; the insistence of some of the petitioners
to compel the JBC through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be submitted instead to the next
President; the strong position that the incumbent President is already prohibited under
Section 15, Article VII from making any appointments, including those to the Judiciary,
starting on May 10, 2010 until June 30, 2010; and the contrary position that the incumbent
President is not so prohibited are only some of the real issues for determination. All such
issues establish the ripeness of the controversy, considering that for some the short list must
be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be
an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely
settle - with finality - the nagging questions that are preventing the JBC from moving on with
the process that it already began, or that are reasons persuading the JBC to desist from the
rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal
issue to ripe for judicial determination by the Court. It is enough that one alleges conduct
arguably affected with a constitutional interest, but seemingly proscribed by the Constitution.
A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is
sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts
before it to enable it to intelligently adjudicate the issues.65 Herein, the facts are not in doubt,
for only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in
the Supreme Court or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and
Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement on May 17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the awesome
powers of government among the three great departments, the Legislative (Article VI), the
Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a
true recognition of the principle of separation of powers that underlies the political structure,
as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court)
explained in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to
separate and divide the awesome powers of government. Hence, we return to the separation
of powers doctrine and the legislative, executive and judicial departments.66
As can be seen, Article VII is devoted to the Executive Department, and, among others, it
lists the powers vested by the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of
Members of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are
the provisions specifically providing for the appointment of Supreme Court Justices. In
particular, Section 9 states that the appointment of Supreme Court Justices can only be
made by the President upon the submission of a list of at least three nominees by the JBC;
Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15, Article VII as being equally
applicable to the appointment of Members of the Supreme Court in Article VIII itself, most
likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the President's or Acting
President's term does not refer to the Members of the Supreme Court.
Although Valenzuela67 came to hold that the prohibition covered even judicial appointments, it
cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior
Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the appointments to the
Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1),
Article VIII, viz:
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the
original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that
that number would not be reduced for any appreciable length of time (even only temporarily),
and to this end proposed that any vacancy "must be filled within two months from the date
that the vacancy occurs." His proposal to have a 15-member Court was not initially adopted.
Persisting however in his desire to make certain that the size of the Court would not be
decreased for any substantial period as a result of vacancies, Lerum proposed the insertion
in the provision (anent the Court's membership) of the same mandate that "IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF." He later agreed to suggestions to make the period three, instead of two, months.
As thus amended, the proposal was approved. As it turned out, however, the Commission
ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up any vacancy therein
within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall be filled
within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the
prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a
President or Acting President shall not make appointments…"
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a
Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
"WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President). Davide stated that his purpose
was to provide a "uniform rule" for lower courts. According to him, the 90-day period should
be counted from submission of the list of nominees to the President in view of the possibility
that the President might reject the list submitted to him and the JBC thus need more time to
submit a new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to the
end of his term" - was approved without discussion.68
However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent
of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio
Lerum, "a command [to the President] to fill up any vacancy therein within 90 days from its
occurrence," which even Valenzuela conceded.69 The exchanges during deliberations of the
Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the
Supreme Court within the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the
Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: "Any vacancy shall be
filled within ninety days from the occurrence thereof."
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years,
seldom has the Court had a complete complement.70
Moreover, the usage in Section 4(1), Article VIII of the word shall - an imperative, operating to
impose a duty that may be enforced71 - should not be disregarded. Thereby, Sections 4(1)
imposes on the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by the
President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in
the Supreme Court was undoubtedly a special provision to establish a definite mandate for
the President as the appointing power, and cannot be defeated by mere judicial interpretation
in Valenzuela to the effect that Section 15, Article VII prevailed because it was "couched in
stronger negative language." Such interpretation even turned out to be conjectural, in light of
the records of the Constitutional Commission's deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According to an
authority on statutory construction:72
xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring
to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a
statute, or any other writing for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have seemed so to the
drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering
the enactment in its entirety, what appears to be on its face a conflict may be cleared up and
the provisions reconciled.
Consequently, that construction which will leave every word operative will be favored over
one which leaves some word or provision meaningless because of inconsistency. But a word
should not be given effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of a statute, they
must be made effective as far as possible. Nor should the provisions of a statute which are
inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two
provisions are irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a statute, the provision last in order
of position will prevail, since it is the latest expression of the legislative will. Obviously, the
rule is subject to deserved criticism. It is seldom applied, and probably then only where an
irreconcilable conflict exists between different sections of the same act, and after all other
means of ascertaining the meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of the rule's application, largely
because of the principle of implied repeal.
In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other provision,
least of all one found in Article VII. It further ignored that the two provisions had no
irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As
judges, we are not to unduly interpret, and should not accept an interpretation that defeats
the intent of the framers.73
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.74 It will not do to merely distinguish Valenzuela from these
cases, for the result to be reached herein is entirely incompatible with what Valenzuela
decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the
unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of
Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v.
Castillo.75 In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first refers
to those appointments made within the two months preceding a Presidential election and are
similar to those which are declared election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the so-
called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was
defeated in his bid for reelection, became no more than a "caretaker" administrator whose
duty was to "prepare for the orderly transfer of authority to the incoming President." Said the
Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the appointment and
appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of almost all of them in a few hours
before the inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions, and
thereby to deprive the new administration of an opportunity to make the corresponding
appointments."
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new President. Such
appointments, so long as they are "few and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications," can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have been well considered,
were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably
be deemed to contemplate not only "midnight" appointments - those made obviously for
partisan reasons as shown by their number and the time of their making - but also
appointments presumed made for the purpose of influencing the outcome of the Presidential
election.
On the other hand, the exception in the same Section 15 of Article VII - allowing
appointments to be made during the period of the ban therein provided - is much narrower
than that recognized in Aytona. The exception allows only the making
of temporary appointments to executive positions when continued vacancies will prejudice
public service or endanger public safety. Obviously, the article greatly restricts the appointing
power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts and
the restriction on the President's power of appointment, it is this Court's view that, as a
general proposition, in case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up
of court vacancies or the disposition of some cases. Temporary vacancies can abide the
period of the ban which, incidentally and as earlier pointed out, comes to exist only once in
every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in their effects.
They may, as earlier pointed out, in fact influence the results of elections and, for that reason,
their making is considered an election offense.76
Given the background and rationale for the prohibition in Section 15, Article VII, we have no
doubt that the Constitutional Commission confined the prohibition to appointments made in
the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting
the nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer be midnight
appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in
haste and with irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming President or for
partisanship,77 the appointments to the Judiciary made after the establishment of the JBC
would not be suffering from such defects because of the JBC's prior processing of
candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the
purpose of the enactment is a step in the process of ascertaining the intent or meaning of the
enactment, because the reason for the enactment must necessarily shed considerable light
on "the law of the statute," i.e., the intent; hence, the enactment should be construed with
reference to its intended scope and purpose, and the court should seek to carry out this
purpose rather than to defeat it.78
Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can
be made for the purpose of buying votes in a coming presidential election, or of satisfying
partisan considerations. The experience from the time of the establishment of the JBC shows
that even candidates for judicial positions at any level backed by people influential with the
President could not always be assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of the JBC and pass muster there.
Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating process was
absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the
Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it
met on March 9, 1998 to discuss the question raised by some sectors about the
"constitutionality of xxx appointments" to the Court of Appeals in light of the forthcoming
presidential elections. He assured that "on the basis of the (Constitutional) Commission's
records, the election ban had no application to appointments to the Court of Appeals."79 This
confirmation was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of Appeals. 80
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the President's power to appoint during the
period of prohibition in Section 15, Article VII could have been dispelled since its
promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on
the confirmation of a distinguished member of the Constitutional Commission like Justice
Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16)
concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments made by
an Acting President,81 and evidently refers only to appointments in the Executive Department.
It has no application to appointments in the Judiciary, because temporary or acting
appointments can only undermine the independence of the Judiciary due to their being
revocable at will.82 The letter and spirit of the Constitution safeguard that independence. Also,
there is no law in the books that authorizes the revocation of appointments in the Judiciary.
Prior to their mandatory retirement or resignation, judges of the first and second level courts
and the Justices of the third level courts may only be removed for cause, but the Members of
the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.83
Section 14, Section 15, and Section 16 are obviously of the same character, in that they
affect the power of the President to appoint. The fact that Section 14 and Section 16 refer
only to appointments within the Executive Department renders conclusive that Section 15
also applies only to the Executive Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference to the context, i.e. that every part
must be considered together with the other parts, and kept subservient to the general intent
of the whole enactment.84 It is absurd to assume that the framers deliberately situated
Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds
of presidential appointments. If that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar
prohibition in Article VIII, most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the
Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments. Such a holding will
tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders
vying for the Presidency in a presidential election. Consequently, the wisdom of having the
new President, instead of the current incumbent President, appoint the next Chief Justice is
itself suspect, and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment by the incumbent
President does not run the same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent
President to appoint during the prohibition period the successor of Chief Justice Puno within
the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of
the 90 days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from
Chief Justice Puno's retirement by May 17, 2010. It ignores the need to apply Section 4(1) to
every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time remaining in
the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the
OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of
May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular
presidential elections are held on May 8, the period of the prohibition is 115 days. If such
elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme
Court. The result is that there are at least 19 occasions (i.e., the difference between the
shortest possible period of the ban of 109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the
framers of the Constitution could not have intended such an absurdity. In fact, in their
deliberations on the mandatory period for the appointment of Supreme Court Justices under
Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the
ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day
period, or vice versa. They did not need to, because they never intended Section 15, Article
VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a
JBC list is necessary at all for the President - any President - to appoint a Chief Justice if the
appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list
of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the outside,
that is, a non-member of the Court aspiring to become one. It speaks of candidates for the
Supreme Court, not of those who are already members or sitting justices of the Court, all of
whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief
Justice?
The question is not squarely before us at the moment, but it should lend itself to a deeper
analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's
statement that the President can appoint the Chief Justice from among the sitting justices of
the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor
of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the
situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. - In case of a vacancy in the office of Chief
Justice of the Supreme Court or of his inability to perform the duties and powers of his office,
they shall devolve upon the Associate Justice who is first in precedence, until such disability
is removed, or another Chief Justice is appointed and duly qualified. This provision shall
apply to every Associate Justice who succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the
Chief Justice, or in the event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers of the office of the Chief
Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief
Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the
Court has hereby resolved the question of consequence, we do not find it amiss to confront
the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of
a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a
list of at least three nominees prepared by the JBC for every vacancy, which appointments
require no confirmation by the Commission on Appointments. With reference to the Chief
Justice, he or she is appointed by the President as Chief Justice, and the appointment is
never in an acting capacity. The express reference to a Chief Justice abhors the idea that the
framers contemplated an Acting Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the
next Chief Justice soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one to be
occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation
in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is
unable to perform the duties and powers of the office. It ought to be remembered, however,
that it was enacted because the Chief Justice appointed under the 1935 Constitution was
subject to the confirmation of the Commission on Appointments, and the confirmation
process might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to having
the Associate Justice who is first in precedence take over. Under the Constitution, the heads
of the Legislative and Executive Departments are popularly elected, and whoever are elected
and proclaimed at once become the leaders of their respective Departments. However, the
lack of any appointed occupant of the office of Chief Justice harms the independence of the
Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire Supreme
Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the
Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its
being mandatory for the incumbent President to make within the 90-day period from May 17,
2010, there is no justification to insist that the successor of Chief Justice Puno be appointed
by the next President.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on the other hand. As summarized
in the comment of the OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice
Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was
appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice
Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006. 85
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from
an office, trust, or station.86 It is proper when the act against which it is directed is one
addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.87
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a
clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the
act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of
the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e)
there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of
law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three
nominees to the President for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of recommending appointees to the
Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed
by the President from a list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from
the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in
the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days
from the submission of the list, in the case of the lower courts. The 90-day period is directed
at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of the vacancy. The JBC has no
discretion to submit the list to the President after the vacancy occurs, because that shortens
the 90-day period allowed by the Constitution for the President to make the appointment. For
the JBC to do so will be unconscionable on its part, considering that it will thereby effectively
and illegally deprive the President of the ample time granted under the Constitution to reflect
on the qualifications of the nominees named in the list of the JBC before making the
appointment.
The duty of the JBC to submit a list of nominees before the start of the President's mandatory
90-day period to appoint is ministerial, but its selection of the candidates whose names will
be in the list to be submitted to the President lies within the discretion of the JBC. The object
of the petitions for mandamus herein should only refer to the duty to submit to the President
the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful
neglect of duty, there must be an unjustified delay in performing that duty. 88 For mandamus to
lie against the JBC, therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been delineated in the
following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the
act done. If the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.89
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a
writ of mandamus against the JBC. The actions for that purpose are premature, because it is
clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can
appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No. 191032, which
proposes to prevent the JBC from intervening in the process of nominating the successor of
Chief Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit.
The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for
nomination by raising the minimum number of votes required in accordance with the rules of
the JBC, is not based on the petitioners' actual interest, because they have not alleged in
their petition that they were nominated to the JBC to fill some vacancies in the Judiciary.
Thus, the petitioners lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R.
No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for
lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and
Bar Council:
(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.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON
APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador
Mison from performing the functions of the Office of Commissioner of the Bureau of Customs
and the respondent Guillermo Carague, as Secretary of the Department of Budget, from
effecting disbursements in payment of Mison's salaries and emoluments, on the ground that
Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by
reason of its not having been confirmed by the Commission on Appointments. The
respondents, on the other hand, maintain the constitutionality of respondent Mison's
appointment without the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public
service, the Court resolved to give due course to the petition and decide, setting aside the
finer procedural questions of whether prohibition is the proper remedy to test respondent
Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply thereto.
The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between
two (2) great departments of government, the Executive and Legislative Departments. It also
occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the
intent of the framers of the organic law and of the people adopting it. The
intention to which force is to be given is that which is embodied and
expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with
how the executive or the legislative department may want them construed, but in accordance
with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are
four (4) groups of officers whom the President shall appoint. These four (4) groups, to which
we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in
this Constitution; 2
Second, all other officers of the Government whose appointments are not
otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
 Fourth, officers lower in rank 4 whose appointments the Congress may by
law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President appoints.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall
appoint ambassadors, other public ministers and consuls ...
5
Upon the other hand, the 1973 Constitution provides that-

The second, third and fourth groups of officers are the present bone of contention. Should
they be appointed by the President with or without the consent (confirmation) of the
Commission on Appointments? By following the accepted rule in constitutional and statutory
construction that an express enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions expressly stated in the first group
require the consent (confirmation) of the Commission on Appointments. But we need not rely
solely on this basic rule of constitutional construction. We can refer to historical background
as well as to the records of the 1986 Constitutional Commission to determine, with more
accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people
adopting it, on whether the appointments by the President, under the second, third and fourth
groups, require the consent (confirmation) of the Commission on Appointments. Again, in this
task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them.
"Courts are bound to presume that the people adopting a constitution are
familiar with the previous and existing laws upon the subjects to which its
provisions relate, and upon which they express their judgment and opinion in
its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and
bureaus, officers of the army from the rank of colonel, of the Navy and Air
Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Section 10. The President shall appoint the heads of bureaus and offices, the
officers of the Armed Forces of the Philippines from the rank of Brigadier
General or Commodore, and all other officers of The government whose
appointments are not herein otherwise provided for, and those whom he may
be authorized by law to appoint. However, the Batasang Pambansa may by
law vest in the Prime Minister, members of the Cabinet, the Executive
Committee, Courts, Heads of Agencies, Commissions, and Boards the power
to appoint inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history
that the power of confirmation by the Commission on Appointments, under the 1935
Constitution, transformed that commission, many times, into a venue of "horse-trading" and
similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it
was molded and remolded by successive amendments, placed the absolute power of
appointment in the President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution
and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of
the Commission on Appointments for the first group of appointments and leaving to the
President, without such confirmation, the appointment of other officers, i.e., those in the
second and third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original
text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986
Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of colonel or naval captain and
all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may by law vest the appointment of inferior officers in
 the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution.
When the frames discussed on the floor of the Commission the proposed text of Section 16,
Article VII, a feeling was manifestly expressed to make the power of the Commission on
Appointments over presidential appointments more limited than that held by the Commission
in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take
a few minutes of our time to lay the basis for some of the
amendments that I would like to propose to the Committee
this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals
and so on but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the
appointments of heads of bureaus from the requirement of confirmation by the Commission
on Appointments; and (2) the exclusion of appointments made under the second
sentence 9 of the section from the same requirement. The records of the deliberations of the
Constitutional Commission show the following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on
page 7, Section 16, line 26 which is to delete the words "and
bureaus," and on line 28 of the same page, to change the
phrase 'colonel or naval captain to MAJOR GENERAL OR
REAR ADMIRAL. This last amendment which is co-authored
by Commissioner de Castro is to put a period (.) after the
word ADMIRAL, and on line 29 of the same page, start a
new sentence with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by
one. The first proposed amendment is to delete the words
"and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other
Commissioners, what would be the justification of the
proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite
low in the executive department, and to require further
confirmation of presidential appointment of heads of bureaus
would subject them to political influence.
MR. REGALADO: The Commissioner's proposed
amendment by deletion also includes regional directors as
distinguished from merely staff directors, because the
regional directors have quite a plenitude of powers within the
regions as distinguished from staff directors who only stay in
the office.
MR. FOZ: Yes, but the regional directors are under the
supervisiopn of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner
Foz? The Commissioner proposed an amendment to delete
'and bureaus on Section 16. Who will then appoint the
bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but
their appointment shall no longer be subject to confirmation
by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same
answer of Commissioner de Castro?
MR. FOZ: Yes.
 MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of
the Committee?
xxx xxx xxx
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels
that this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by
one. We will first vote on the deletion of the phrase 'and
bureaus on line 26, such that appointments of bureau
directors no longer need confirmation by the Commission on
Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with
the consent of a Commission on Appointments, shall appoint the heads of
the executive departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the
phrase 'and bureaus' on page 7, line 26? (Silence) The Chair
hears none; the amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed
amendment on page 7, line 28. 1 propose to put a period (.)
after 'captain' and on line 29, delete 'and all' and substitute it
with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts
the proposed amendment because it makes it clear that
those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
MR. DAVIDE: So would the proponent accept an
amendment to his amendment, so that after "captain" we
insert the following words: AND OTHER OFFICERS
WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided
for in the Constitution whose appointments are vested in the
President, as a matter of fact like those of the different
constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in
Section 16 is not an exclusive list of those appointments
which constitutionally require confirmation of the
Commission on Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of
the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his
proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN
HIM IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS
WHOSE APPOINTMENTS REQUIRE CONFIRMATION
UNDER THIS CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
 MR. REGALADO: Just for the record, of course, that
excludes those officers which the Constitution does not
require confirmation by the Commission on Appointments,
like the members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the
modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed
amendment of Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted
by the Committee? (Silence) The Chair hears none; the
amendment, as amended, is approved 10 (Emphasis
supplied).
It is, therefore, clear that appointments to the second and third groups of
officers can be made by the President without the consent (confirmation) of
the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII reading-
He (the President) shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law and those whom
he may be authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner"
appoint the officers mentioned in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the same manner as he appoints
officers mentioned in the first sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily
supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word
"also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p.
62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said
second sentence means that the President, in addition to nominating and, with the consent of
the Commission on Appointments, appointing the officers enumerated in the first sentence,
can appoint (without such consent (confirmation) the officers mentioned in the second
sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as
used in the context of said second sentence, the Court has chosen to derive significance
from the fact that the first sentence speaks of nomination by the President and appointment
by the President with the consent of the Commission on Appointments, whereas, the second
sentence speaks only of appointment by the President. And, this use of different language in
two (2) sentences proximate to each other underscores a difference in message conveyed
and perceptions established, in line with Judge Learned Hand's observation that "words are
not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the
1986 Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there
are officers whose appointments require no confirmation of the Commission on
Appointments, even if such officers may be higher in rank, compared to some officers whose
appointments have to be confirmed by the Commission on Appointments under the first
sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central
Bank Governor requires no confirmation by the Commission on Appointments, even if he is
higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the
Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers
whose appointments require the consent of the Commission on Appointments by express
mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments. This conclusion
is inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were
knowledgeable of what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character.
Limitations on or qualifications of such power should be strictly construed against them. Such
limitations or qualifications must be clearly stated in order to be recognized. But, it is only in
the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the
President to the positions therein enumerated require the consent of the Commission on
Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission
on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987
Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to
be appointed by the President subject to confirmation by the Commission on Appointments;
and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be
appointed by the President, subject also to confirmation by the Commission on
Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law
vest their appointment in the President, in the courts, or in the heads of the various
departments, agencies, commissions, or boards in the government. No reason however is
submitted for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful
study of the deliberations of the 1986 Constitutional Commission, that the use of the word
alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than
anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935
Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII
thereof —
...; but the Congress may by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of departments. [Emphasis
supplied].
The above provision in the 1935 Constitution appears immediately after the provision which
makes practically all presidential appointments subject to confirmation by the Commission on
Appointments, thus-
3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and
bureaus, officers of the Army from the rank of colonel, of the Navy and Air
Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein provided for, and those
whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential
appointments to confirmation by the Commission on Appointments, the same 1935
Constitution saw fit, by way of an exception to such rule, to provide that Congress may,
however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in
rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the
heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of
its framers was to exclude presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly mentioned in the first sentence of
Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec.
16, Article VII the word "alone" after the word "President" in providing that Congress may by
law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in
the heads of departments, because the power to appoint officers whom he (the President)
may be authorized by law to appoint is already vested in the President, without need of
confirmation by the Commission on Appointments, in the second sentence of the same Sec.
16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case
of lower-ranked officers, the Congress may by law vest their appointment in the President, in
the courts, or in the heads of various departments of the government. In short, the word
"alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import
from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be
redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy
cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that
presidential appointments, except those mentioned in the first sentence of Sec. 16, Article
VII, are not subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on Appointments is required.
As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of
bureaus" among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of
"heads of bureaus" from appointments that need the consent (confirmation) of the
Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the
Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known
as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the
Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one
chief and one assistant chief, to be known respectively as the Commissioner
(hereinafter known as the 'Commissioner') and Assistant Commissioner of
Customs, who shall each receive an annual compensation in accordance
with the rates prescribed by existing laws. The Assistant Commissioner of
Customs shall be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential
Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus
amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs
shall have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy
Commissioner of Customs, who shall each receive an annual compensation
in accordance with the rates prescribed by existing law. The Commissioner
 and the Deputy Commissioner of Customs shall be appointed by the
President of the Philippines (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the
effectivity of the 1935 Constitution, under which the President may nominate and, with the
consent of the Commission on Appointments, appoint the heads of bureaus, like the
Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34
have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment
of the Commissioner of the Bureau of Customs is one that devolves on the President, as an
appointment he is authorizedby law to make, such appointment, however, no longer needs
the confirmation of the Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau
of Customs, without submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and functions of the office and to
receive all the salaries and emoluments pertaining thereto.

WHEREFORE, the petition and petition in intervention should be, as they are, hereby
DISMISSED. Without costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations
Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III,
MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B.
BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG,
ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N.
ABELLA, in their capacity as Commissioners of the National Labor Relations
Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law
to appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress. 1
The power of the Commission on Appointments (CA for brevity) to confirm appointments,
contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed
in Sarmiento III vs. Mison 2 as follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs
(a bureau head) is not one of those within the first group of appointments
where the consent of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935 Constitution includes
"heads of bureaus" among those officers whose appointments need the
consent of the Commission on Appointments, the 1987 Constitution, on the
other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on
Appointments.
. . . Consequently, we rule that the President of the Philippines acted within
her constitutional authority and power in appointing respondent Salvador
Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments
from confirmation by the Commission on Appointments, except appointments
to offices expressly mentioned in the first sentence of Sec. 16,
Art.VII. Consequently, there was no reason to use in the third sentence of
Sec. 16, Article VII the word "alone" after the word "President" in providing
that Congress may by law vest the appointment of lower-ranked officers in
the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the president) may be
authorized by law to appoint is already vested in the President, without need
of confirmation by the Commission on Appointments, in the second sentence
of the same Sec. 16, Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the
Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on Human Rights is
not among the positions mentioned in the first sentence of Sec. 16, Art. VII of
the 1987 Constitution, appointments to which are to be made with the
confirmation of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the CHR is to be made
without the review or participation of the Commission on Appointments. To
be more precise, the appointment of the Chairman and Members of the
Commission on Human Rights is not specifically provided for in the
Constitution itself, unlike the Chairmen and Members of the Civil Service
 Commission, the Commission on Elections and the Commission on Audit,
whose appointments are expressly vested by the Constitution in the
president with the consent of the Commission on Appointments. The
president appoints the Chairman and Members of The Commission on
Human Rights pursuant to the second sentence in Section 16, Art. VII, that
is, without the confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the President) may be
authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5
May 1987, authorizes the President to appoint the Chairman and Members of
the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The
Commission on Constitutional Commissions, et al.,4 the power of confirmation of the
Commission on Appointments over appointments by the President of sectoral representatives
in Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2,
Section 5, Art. VI may be filled by appointment by the President by express
provision of Section 7, Art. XVIII of the Constitution, it is indubitable that
sectoral representatives to the House of Representatives are among the
"other officers whose appointments are vested in the President in this
Constitution," referred to in the first sentence of Section 16, Art. VII whose
appointments are subject to confirmation by the Commission on
Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential
appointees mentioned in the first sentence of Section 16, Article VII, including, those officers
whose appointments are expressly vested by the Constitution itself in the president (like
sectoral representatives to Congress and members of the constitutional commissions of
Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other government officers whose
appointments are not otherwise provided for by law or those officers whom he may be
authorized by law to appoint (like the Chairman and Members of the Commission on Human
Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to
provide for appointment thereto, or provides in an unconstitutional manner for such
appointments, the officers are considered as among those whose appointments are not
otherwise provided for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD
442) was approved. It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other
Commissioners shall all be appointed by the President, subject to
confirmation by the Commission on Appointments. Appointments to any
vacancy shall come from the nominees of the sector which nominated the
predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be
appointed by the President, upon recommendation of the Secretary of Labor
and Employment, and shall be subject to the Civil Service Law, rules and
regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and
Commissioners of the NLRC representing the public, workers and employers sectors. The
appointments stated that the appointees may qualify and enter upon the performance of the
duties of the office. After said appointments, then Labor Secretary Franklin Drilon issued
Administrative Order No. 161, series of 1989, designating the places of assignment of the
newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC), without submitting the same
to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code
as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the
presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the
appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as
Congress may, by law, require confirmation by the Commission on Appointments of other
officers appointed by the President additional to those mentioned in the first sentence of
Section 16 of Article VII of the Constitution. Petitioner claims that
the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar,
the President issued permanent appointments to the respondents without submitting them to
the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation
by the Commission on Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor
Code transgressesSection 16, Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional basis. Mison and Bautista laid the issue
to rest, says the Solicitor General, with the following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the
Commission on Appointments is required exclusively for the heads of
executive departments, ambassadors, public ministers, consuls, officers of
the armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in the President by the Constitution, such as
the members of the various Constitutional Commissions. With respect to the
other officers whose appointments are not otherwise provided for by the law
and to those whom the President may be authorized by law to appoint, no
confirmation by the Commission on Appointments is required.
Had it been the intention to allow Congress to expand the list of officers
whose appointments must be confirmed by the Commission on
Appointments, the Constitution would have said so by adding the phrase
"and other officers required by law" at the end of the first sentence, or the
phrase, "with the consent of the Commission on Appointments" at the end of
the second sentence. Evidently, our Constitution has significantly omitted to
provide for such additions.
The original text of Section 16 of Article VII of the present Constitution as
embodied in Resolution No. 517 of the Constitutional Commission reads as
follows:
"The President shall nominate and, with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of captain or commander, and all other officers
of the Government whose appointments are not herein
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may by law vest
the appointment of inferior officers in the President alone, in
the courts or in the heads of the department."
Three points should be noted regarding sub-section 3 of Section 10 of Article
VII of the 1935 Constitution and in the original text of Section 16 of Article VII
of the present Constitution as proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus were required to
be confirmed by the Commission on Appointments.
Second, in both of them, the appointments of other officers, "whose
appointments are not otherwise provided for by law to appoint" are expressly
made subject to confirmation by the Commission on Appointments. However,
in the final version of Resolution No. 517, as embodied in Section 16 of
Article VII of the present Constitution, the appointment of the above
mentioned officers (heads of bureaus; other officers whose appointments are
not provided for by law; and those whom he may be authorized by law to
appoint) are excluded from the list of those officers whose appointments are
to be confirmed by the Commission on Appointments. This amendment,
reflected in Section 16 of Article VII of the Constitution, clearly shows the
intent of the framers to exclude such appointments from the requirement of
confirmation by the Commission on Appointments.
Third, under the 1935 Constitution the word "nominate" qualifies the entire
Subsection 3 of Section 10 of Article VII thereof.
Respondent reiterates that if confirmation is required, the three (3) stage
process of nomination, confirmation and appointment operates. This is only
true of the first group enumerated in Section 16, but the word nominate does
not any more appear in the 2nd and 3rd sentences. Therefore, the
president's appointment pursuant to the 2nd and 3rd sentences needs no
confirmation. 6
The only issue to be resolved by the Court in the present case is whether or not Congress
may, by law, require confirmation by the Commission on Appointments of appointments
extended by the president to government officers additional to those expressly mentioned in
the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require
confirmation by the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
. . . there are four (4) groups of officers whom the President shall appoint.
These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors,
other public ministers and consuls, officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the president may be authorized by law
to appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone. 7
Mison also opined:
In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were (1)
the exclusion of the appointments of heads of bureaus from the requirement
of confirmation by the Commission on Appointments; and (2) the exclusion of
appointments made under the second sentence of the section from the same
requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be
authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of
Section 16, Article VII of the Constitution, more specifically under the "third groups" of
appointees referred to in Mison, i.e. those whom the President may be authorized by law to
appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers
mentioned in the first sentence of Section 16, Article VII whose appointments requires
confirmation by the Commission on Appointments. To the extent that RA 6715 requires
confirmation by the Commission on Appointments of the appointments of respondents
Chairman and Members of the National Labor Relations Commission, it is unconstitutional
because:
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding
thereto appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by
imposing the confirmation of the Commission on Appointments on appointments which are
otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality
is a judicial function. The Court respects the laudable intention of the legislature. Regretfully,
however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor
Code, insofar as it requires confirmation of the Commission on Appointments over
appointments of the Chairman and Member of the National Labor Relations Commission
(NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the
Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the legal
system of the Philippines.8 No doctrine or principle of law laid down by the Court in a decision
rendered en banc or in division may be modified or reversed except by the Court sitting en
banc.9
. . . The interpretation upon a law by this Court constitutes, in a way, a part of
the law as of the date that law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative intent that
the law thus construed intends to effectuate. The settled rule supported by
numerous authorities is a restatement of the legal maxim "legis interpretado
legis vim obtinent" — the interpretation placed upon the written law by a
competent court has the force of law. 10
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16
consistently in one manner. Can legislation expand a constitutional provision after the
Supreme Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590,
Congress says that taxing the salary of a judicial officer is not a decrease of
compensation. This is a clear example of interpretation or ascertainment of
the meaning of the phrase "which shall not be diminished during their
continuance in office," found in Section 9, Article VIII of the Constitution,
referring to the salaries of judicial officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot
pass any declaratory act, or act declaratory of what the law
was before its passage, so as to give it any binding weight
with the courts. A legislative definition of a word as used in a
statute is not conclusive of its meaning as used elsewhere;
otherwise, the legislature would be usurping a judicial
function in defining a term. (11 Am. Jur., 914, emphasis
supplied).
The legislature cannot, upon passing law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so
construed as not to violate the constitutional inhibition. (11
Am., Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of government is
assigned the task and the power to make and enact laws, but not to interpret
them. This is more true with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the Legislative department. If
the Legislature may declare what a law means, or what a specific portion of
the Constitution means, especially after the courts have in actual case
ascertained its meaning by interpretation and applied it in a decision, this
would surely cause confusion and instability in judicial processes and court
decisions. Under such a system, a final court determination of a case based
on a judicial interpretation of the law or of the Constitution may be
undermined or even annulled by a subsequent and different interpretation of
the law or of the Constitution by the Legislative department that would be
neither wise nor desirable, being clearly violative of the fundamental
principles of our constitutional system of government, particularly those
governing the separation of powers. 14(Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its
constitutional powers when it sets out to enact legislation and it must take into account the
relevant constitutional prohibitions. 15
 . . . The Constitution did not change with public opinion.

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

The function of the Court in passing upon an act of Congress is to "lay the article of the
Constitution which is invoked beside the statute which is challenged and to decide whether
the latter squares with the former" and to "announce its considered judgment upon the
question." 17

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

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

The deliberate limitation on the power of confirmation of the Commission on Appointments

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

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA
6715 insofar as it requires the confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National Labor Relations Commission
(NLRC) is hereby declared unconstitutional and of no legal force and effect.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the
appointment of respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas
for not having been confirmed by the Commission on Appointments. The petition seeks to
enjoin respondent Singson from the performance of his functions as such official until his
appointment is confirmed by the Commission on Appointments and respondent Salvador M.
Enriquez, Secretary of Budget and Management, from disbursing public funds in payment of
the salaries and emoluments of respondent Singson.
I
Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V.
Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10).
Petitioner argues that respondent Singson's appointment is null and void since it was not
submitted for confirmation to the Commission on Appointments. The petition is anchored on
the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the
Central Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The powers and functions of the
Bangko Sentral shall be exercised by the Bangko Sentral Monetary Board,
hereafter referred to as the Monetary Board, composed of seven (7)
members appointed by the President of the Philippines for a term of six (6)
years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall be the Chairman of the
Monetary Board. The Governor of the Bangko Sentral shall be head of a
department and his appointment shall be subject to confirmation by the
Commission on Appointments. Whenever the Governor is unable to attend a
meeting of the Board, he shall designate a Deputy Governor to act as his
alternate: Provided, That in such event, the Monetary Board shall designate
one of its members as acting Chairman . . . (Emphasis supplied).
In their comment, respondents claim that Congress exceeded its legislative powers in
requiring the confirmation by the Commission on Appointments of the appointment of the
Governor of the Bangko Sentral. They contend that an appointment to the said position is not
among the appointments which have to be confirmed by the Commission on Appointments,
citing Section 16 of Article VII of the Constitution which provides that:
Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law
to appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
department, agencies, commissions, or boards . . . (Emphasis supplied).
Respondents also aver that the Bangko Sentral has its own budget and accordingly, its
budgetary requirements are not subject to the provisions of the General Appropriations Act.
We dismiss the petition.
II
The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of
respondent Singson and alleges that the latter is unlawfully holding or exercising the powers
of Governor of the Bangko Sentral (Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a
special civil action can only be commenced by the Solicitor General or by a "person claiming
to be entitled to a public office or position unlawfully held or exercised by another" (Revised
Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who
did not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could
not bring the action for quo warranto to oust the respondent from said office as a mere
usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question
of title to an office, which must be resolved in a quo warranto proceeding, may not be
determined in a suit to restrain the payment of salary to the person holding such office,
brought by someone who does not claim to be the one entitled to occupy the said office.

It is obvious that the instant action was improvidently brought by petitioner. To uphold the
action would encourage every disgruntled citizen to resort to the courts, thereby causing
incalculable mischief and hindrance to the efficient operation of the governmental machinery
(See Roosevelt v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218).

Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no
need to resolve the question of whether the disbursement of public funds to pay the salaries
and emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from
passing upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle
that bars a judicial inquiry into a constitutional question unless the resolution thereof is
indispensable for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).

However for the information of all concerned, we call attention to our decision in Calderon v.
Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that
Congress cannot by law expand the confirmation powers of the Commission on
Appointments and require confirmation of appointment of other government officials not
expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution.

WHEREFORE, the petition is DENIED. No pronouncement as to costs.

SO ORDERED.

THIRD DIVISION
G.R. No. 153881 March 24, 2003
ELPIDIO G. SORIANO III, petitioner,
vs.
REUBEN S. LISTA, DOMINGO T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C. TABARES,
ARTHUR N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE, DANILO M. VILDA
and HONORABLE EMILIA T. BONCODIN, in her capacity as Secretary of Budget and
Management, respondents.
CORONA, J.:
Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning the
constitutionality and legality of the permanent appointments, made by President Gloria
Macapagal-Arroyo, of public respondents to different positions in the Philippine Coast Guard
and their subsequent assumption of office without confirmation by the Commission on
Appointments under the 1987 Constitution.
The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the
Department of Budget and Management (DBM). Petitioner, Elpidio G. Soriano, filed the
instant petition as member of the Integrated Bar of the Philippines and as a taxpayer.
Public respondents were promoted to different ranks in the Philippine Coast Guard (PCG) on
different dates as follows:
Reuben S. Lista – Vice Admiral, Philippine Coast Guard
Domingo T. Estera – Rear Admiral, Philippine Coast Guard
Miguel C. Tabares – Commodore, Philippine Coast Guard
Arthur N. Gosingan – Commodore, Philippine Coast Guard
Efren L. Taduran – Naval Captain, Philippine Coast Guard
Cesar A. Sarile – Naval Captain, Philippine Coast Guard
Danilo M. Vilda – Naval Captain, Philippine Coast Guard
Elpidio B. Padama – Commodore, Philippine Coast Guard
Petitioner bewails the fact that despite the non-submission of their names to the Commission
on Appointments (CA) for confirmation, all of the said respondent officers of the PCG had
assumed their duties and functions. According to petitioner, their respective appointments are
illegal and unconstitutional for failure to undergo the confirmation process in the CA. Thus,
they should be prohibited from discharging their duties and functions as such officers of the
PCG.
In the same vein, petitioner opines that there is no legal basis for the DBM to allow the
disbursement of the salaries and emoluments of respondent officers of the PCG. Accordingly,
he prays that respondent Secretary Boncodin be ordered to desist from allowing such
disbursements until the confirmation of their respective appointments by the CA.
At the outset, the Court finds petitioner to be without any legal personality to file the instant
petition. We have ruled that a private citizen is allowed to raise constitutional questions only if
he can show that he has personally suffered some actual or threatened injury as a result of
the allegedly illegal conduct of the government, the injury is fairly traceable to the challenged
action and the injury is likely to be redressed by a favorable action. 1 In the case at bar,
petitioner has failed to clearly demonstrate that he has personally suffered actual or
threatened injury. It should be emphasized that a party bringing a suit challenging the
constitutionality of an act or statute must show "not only that the law or act is invalid, but also
that he has sustained or is in immediate, or imminent danger of sustaining some direct injury
as a result of its enforcement and not merely that he suffers thereby in some indefinite way." 2
The instant petition cannot even be classified as a taxpayer’s suit because petitioner has no
interest as such and this case does not involve the exercise by Congress of its taxing power.
Assuming arguendo that petitioner has the legal personality to question the subject
appointments, the petition will nevertheless fail. As aptly pointed out by the Solicitor General,
the PCG used to be administered and maintained as a separate unit of the Philippine Navy
under Section 4 of RA 5173. It was subsequently placed under the direct supervision and
control of the Secretary of the Department of National Defense (DND) pursuant to Section 4
of PD 601. Eventually, it was integrated into the Armed Forces of the Philippines (AFP) as a
major subordinate unit of the Philippine Navy under Section 54 of Chapter 8, Sub-title II, Title
VIII, Book IV of EO 292, as amended.
However, on March 30, 1998, after the aforesaid changes in the charter of the PCG, then
President Fidel V. Ramos, in the exercise of his statutory authority to reorganize the Office of
the President, issued EO 475 transferring the PCG from the DND to the Office of the
President. He later on again transferred the PCG from the Office of the President to the SO ORDERED.
Department of Transportation and Communications (DOTC).

Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed
Forces of the Philippines, the promotions and appointments of respondent officers of the
PCG, or any PCG officer from the rank of captain and higher for that matter, do not require
confirmation by the CA.

Section 16, Article VII of the 1987 Constitution provides:

Section 16. The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

It is clear from the foregoing provision of the Constitution that only appointed officers from the
rank of colonel or naval captain in the armed forces require confirmation by the CA. The rule
is that the plain, clear and unambiguous language of the Constitution should be construed as
such and should not be given a construction that changes its meaning. 3

The enumeration of appointments subject to confirmation by the CA under Section 16, Article
VII of the 1987 Constitution is exclusive. The clause "officers of the armed forces from the
rank of colonel or naval captain" refers to military officers alone. This is clear from the
deliberations of the Constitutional Commission on the proposed text of said Section 16,
Article VII of the Constitution. Since the promotions and appointments of respondent officers
are not covered by the above-cited provision of the Constitution, the same need not be
confirmed by the CA.4

Accordingly, the Court declares that no grave abuse of discretion amounting to lack or excess
of jurisdiction was committed by respondent officers of the PCG. Their assumption to office
as well as the disbursement of their respective salaries and other emoluments by the
respondent Secretary of the DBM are hereby declared valid and legal.

WHEREFORE, the petition is hereby DISMISSED.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON
JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent Hesiquio R. Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the
question of which appointments by the President, under the 1987 Constitution, are to be
made with and without the review of the Commission on Appointments. The Mison case was
the first major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the
1987 Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission
and the country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed
by the Commission on Appointments, namely, "the heads of the executive department,
ambassadors, other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution." All other appointments by the President are to be made without the
participation of the Commission on Appointments. Accordingly, in the Mison case, the
appointment of therein respondent Salvador M. Mison as head of the Bureau of Customs,
without the confirmation of the Commission on Appointments, was held valid and in
accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of
Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be
over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the officials of government, who are
the subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be
made with or without the confirmation of the Commission on Appointments (CA, for brevity).
Once more, as in Mison, the Court will resolve the issue irrespective of the parties involved in
the litigation, mindful that what really matters are the principles that will guide this
Administration and others in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the (CHR),
is to be made without the review or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on
Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen
and Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, whose appointments are expressly vested by the Constitution in the
President with the consent of the Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he
(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:
 (c) The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without
reappointment. Appointment to any vacancy shall be only for the unexpired
term of the predecessor.

The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements — absent in the Mison case — makes necessary a
closer scrutiny. The facts are therefore essential.
HON. MARY CONCEPCION BAUTISTA 3
On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of Realizing perhaps the need for a permanent chairman and members of the Commission on
designation reads: Human Rights, befitting an independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988 extended to petitioner Bautista a
27 August 1987 permanent appointment as Chairman of the Commission. The appointment letter is as
follows:
M a d a m:

You are hereby designated ACTING CHAIRMAN, COMMISSION ON

HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J.
B. L. Reyes.

V
e
r
y
t
r
u
l
y
y
The Honorable
o
u The Chairman
r Commission on Human Rights
Pasig, Metro Manila
s
,
M a d a m:
C
O Pursuant to the provisions of existing laws, the following are hereby
R appointed to the positions indicated opposite their respective names in the
A Commission on Human Rights:
Z
O MARY CONCEPCION BAUTISTA — Chairman
N ABELARDO L. APORTADERA, JR — Member
C SAMUEL SORIANO — Member
 HESIQUIO R. MALLILLIN — Member On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan,
NARCISO C. MONTEIRO — Member petitioner Bautista took her oath of office by virtue of her appointment as Chairman of the
Commission on Human Rights. The full text of the oath of office is as follows:
By virtue hereof, they may qualify and enter upon the performance of the
duties of the office furnishing this Office and the Civil Service Commission OATH OF OFFICE
with copies of their oath of office.
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street,
V Bangkal, Makati, Metro Manila having been appointed to the position
e of CHAIRMAN of the Commission on Human Rights, do solemnly swear that
r I will discharge to the best of my ability all the duties and responsibilities of
y the office to which I have been appointed; uphold the Constitution of the
t Republic of the Philippines, and obey all the laws of the land without mental
r reservation or purpose of evasion.
u
l SO HELP ME GOD.
y
y
M
o A
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s
C
,
O
N
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A C
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N N
C B
. A
A U
Q T
U I
I S
N T
O A
5
SUBSCRIBED AND SWORN TO before me this 22nd day of December in
the year of Our Lord, 1988 in Manila.
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the
President that she could qualify and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her to furnish the office of the
President and the Civil Service Commission with copies of her oath of office.
 C l
E i
L p
O p
B i
. n
F e
E s
R
N 6

A
N
Immediately, after taking her oath of office as Chairman of the Commission on Human
Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman of
C the Commission on Human Rights which, as previously stated, she had originally held merely
h in an acting capacity beginning 27 August 1987.
i
e On 9 January 1989, petitioner Bautista received a letter from the Secretary of the
f Commission on Appointments requesting her to submit to the Commission certain information
J and documents as required by its rules in connection with the confirmation of her
u appointment as Chairman of the Commission on Human Rights. 7 On 10 January 1989, the
s Commission on Appointments' Secretary again wrote petitioner Bautista requesting her
t presence at a meeting of the Commission on Appointments Committee on Justice, Judicial
i and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at the Conference
c Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that would deliberate on her
e appointment as Chairman of the Commission on Human Rights. 8

S
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
u
Appointments stating, for the reasons therein given, why she considered the Commission on
p
Appointments as having no jurisdiction to review her appointment as Chairman of the
r Commission on Human Rights. The petitioner's letter to the Commission on Appointments'
e Chairman reads:
m
e
C
o
u
r
t
o
f
t
h
e
P
h
i
 SENATE PRESIDENT JOVITO R. SALONGA The powers of the Commission on Appointments is in fact a derogation of the
Chairman Chief Executive's appointing power and therefore the grant of that authority
Commission on Appointments to review a valid exercise of the executive power can never be presumed. It
Senate, Manila must be expressly granted.

S i r: The Commission on Appointments has no jurisdiction under the Constitution

to review appointments by the President of Commissioners of the
We acknowledge receipt of the communication from the Commission on Commission on Human Rights.
Appointments requesting our appearance on January 19, 1989 for
deliberation on our appointments. In view of the foregoing considerations, as Chairman of an independent
constitutional office. I cannot submit myself to the Commission on
We respectfully submit that the appointments of the Commission Appointments for the purpose of confirming or rejecting my appointment.
commissioners of the Human Rights Commission are not subject to
confirmation by the Commission on Appointments. V
e
The Constitution, in Article VII Section 16 which expressly vested on the r
President the appointing power, has expressly mentioned the government y
officials whose appointments are subject to the confirmation of the t
Commission on Appointments of Congress. The Commissioners of the r
Commission on Human Rights are not included among those. u
l
y
Where the confirmation of the Commission on Appointments is required, as
in the case of the Constitutional Commissions such as the Commission on y
Audit, Civil Service Commission and the Commission on Elections, it was o
u
expressly provided that the nominations will be subject to confirmation of
r
Commission on Appointments. The exclusion again of the Commission on
s
Human Rights, a constitutional office, from this enumeration is a clear denial
of authority to the Commission on Appointments to review our appointments ,
to the Commission on Human Rights.

Furthermore, the Constitution specifically provides that this Commission is

an independent office which:

a. must investigate all forms of human rights violations

involving civil and political rights;

b. shall monitor the government's compliance in all our treaty

obligations on human rights. We submit that, the monitoring
of all agencies of government, includes even Congress itself,
in the performance of its functions which may affect human
rights;

c. may call on all agencies of government for the

implementation of its mandate.
 T This refers to the ad interim appointment which Her Excellency extended to
I Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the
S Commission on Human Rights.
T
A As we conveyed to you in our letter of 25 January 1989, the Commission on
C Appointments, assembled in plenary (session) on the same day, disapproved
h Atty. Bautista's ad interim appointment as Chairperson of the Commission on
a Human Rights in view of her refusal to submit to the jurisdiction of the
i Commission on Appointments.
r
m
This is to inform you that the Commission on Appointments, likewise
a
assembled in plenary (session) earlier today, denied Senator Mamintal A. J.
n Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad
9
interim appointment as Chairperson of the Commission on Human Rights.

In respondent Commission's comment (in this case), dated 3 February 1989, there is
attached as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive
Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which
Her Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as
Chairperson of the Commission on Human Rights" 10 and informing Secretary Macaraig that,
as previously conveyed to him in a letter of 25 January 1989, the Commission on
Appointments disapproved petitioner Bautista's "ad interim appointment' as Chairperson of
the Commission on Human Rights in view of her refusal to submit to the jurisdiction of the
Commission on Appointments. The letter reads:

1
F
e
b
r
u
a
r
y
1
9
8
9

HON. CATALINO MACARAIG, JR.

Executive Secretary
Malacanang, Manila

S i r:
 for reconsideration
O of the disapproval of your ad interim appointment as
Chairperson of the Commission on Human Rights is respectfully conveyed.
S
e your attention.
Thank you for
c
r
e
t
a
r
y

1
1

On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on Human Rights" was denied by the
Commission on Appointments. The letter reads as follows:

1
F
e
b
r
u
a
r
y
1
9
8
9

ATTY. MARY CONCEPCION BAUTISTA

Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on

Appointments, the denial by the Commission on Appointments, assembled in
plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news
item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the
President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of
the Commission" pending the resolution of Bautista's case which had been elevated to the
Supreme Court. The news item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on
Human Rights Chairman Mary Concepcion Bautista whose appointment was
rejected anew by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as
acting chairman of the Commission pending the resolution of Bautista's case
which had been elevated to the Supreme Court.
The President's action followed after Congressional Commission on
Appointments Chairman, Senate President Jovito Salonga declared Bautista
can no longer hold on to her position after her appointment was not
confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of
usurpation of authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way
to Mallillin (Mari Villa) 13
On 20 January 1989, or even before the respondent Commission on Appointments had acted
on her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner
Bautista filed with this Court the present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and unconstitutional and without any
legal force and effect any action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on Human Rights, on the
ground that they have no lawful and constitutional authority to confirm and to review her
appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.
issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989,
1
petitioner filed an amended petition, with urgent motion for restraining order, impleading
2
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and
praying for the nullification of his appointment. The succeeding day, a supplemental urgent
ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing
to exercise the functions of chairman and to refrain from demanding courtesy resignations
from officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order directing respondent Mallillin to cease and
desist from effecting the dismissal, courtesy resignation, i removal and reorganization and
other similar personnel actions. 17 Respondents were likewise required to comment on said
amended petition with allowance for petitioner to file a reply within two (2) days from receipt
of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC
and Human Rights filed a comment to the amended petition on 21 February
1989. 18 Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a
separate comment. 20 The Court required petitioner to reply to respondent Mallillin's comment
. 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-
equal branch of government, the Court did not issue a temporary restraining order directed
against it. However, this does not mean that the issues raised by the petition, as met by the
respondents' comments, will not be resolved in this case. The Court will not shirk from its duty
as the final arbiter of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista
was extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an
appointment that was for the President solely to make, i.e., not an appointment to be
submitted for review and confirmation (or rejection) by the Commission on Appointments.
This is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison
which is here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent
to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to
which she had been appointed, by taking the oath of office and actually assuming and
discharging the functions and duties thereof, could extend another appointment to the
petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent
Commission on Appointments or any other kind of appointment to the same office of
Chairman of the Commission on Human Rights that called for confirmation by the
Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner Bautista's designation as Acting
Chairman to a permanent appointment as Chairman of the Commission on Human Rights on
17 December 1988, significantly she advised Bautista (in the same appointment letter) that,
by virtue of such appointment, she could qualify and enter upon the performance of the duties
of the office (of Chairman of the Commission on Human Rights). All that remained for
Bautista to do was to reject or accept the appointment. Obviously, she accepted the
appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon.
Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the
Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17
December 1988 as Chairman of the Commission on Human Rights was a completed act on
the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the
celebrated case of Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being
the sole act of the President, must be completely evidenced, when it is
shown that he has done everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an
officer, not removable at his will must cease. That point of time must be when
the constitutional power of appointment has been exercised. And this power
has been exercised when the last act, required from the person possessing
the power, has been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over the
office is terminated in all cases, where by law the officer is not removable by
him. The right to the office is then in the person appointed, and he has the
absolute, unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17
December 1988 extended to petitioner Bautista, decided to extend another appointment (14
January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further appointment could be made to a
position already filled by a previously completed appointment which had been accepted by
the appointee, through a valid qualification and assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is
within the president's prerogative to voluntarily submit such appointment to the Commission
on Appointment for confirmation. The mischief in this contention, as the Court perceives it,
lies in the suggestion that the President (with Congress agreeing) may, from time to
time move power boundaries, in the Constitution differently from where they are placed by
the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to
begin with, is concerned with power not political convenience, wisdom, exigency, or even
necessity. Neither the Executive nor the Legislative (Commission on Appointments) can
create power where the Constitution confers none. The evident constitutional intent is to
strike a careful and delicate balance, in the matter of appointments to public office, between
the President and Congress (the latter acting through the Commission on Appointments). To
tilt one side or the other of the scale is to disrupt or alter such balance of power. In other
words, to the extent that the Constitution has blocked off certain appointments for the
President to make with the participation of the Commission on Appointments, so also has the
Constitution mandated that the President can confer no power of participation in the
Commission on Appointments over other appointments exclusively reserved for her by the
Constitution. The exercise of political options that finds no support in the Constitution cannot
be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm appointments
that the Constitution has reserved to the President alone. Stated differently, when the
appointment is one that the Constitution mandates is for the President to make without the
participation of the Commission on Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and the latter's act of confirming or
rejecting the same, are done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY
BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT
COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily
allow the Commission on Appointments to exercise the power of review over an appointment
otherwise solely vested by the Constitution in the President. Yet, as already noted, when the
President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of
the Commission on Human Rights with the advice to her that by virtue of such appointment
(not, until confirmed by the Commission on Appointments), she could qualify and enter upon
the performance of her duties after taking her oath of office, the presidential act of
appointment to the subject position which, under the Constitution, is to be made, in the first
place, without the participation of the Commission on Appointments, was then and there a
complete and finished act, which, upon the acceptance by Bautista, as shown by her taking
of the oath of office and actual assumption of the duties of said office, installed her,
indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights
for a term of seven (7) years. There was thus no vacancy in the subject office on 14 January
1989 to which an appointment could be validly made. In fact, there is no vacancy in said
office to this day.
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines,
do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is
hereby amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be
appointed by the President. Their tenure in office shall be at the pleasure of
the President.

Nor can respondents impressively contend that the new appointment or re-appointment on 14
SEC. 2. This Executive Order shall take effect immediately. DONE in the City
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
of Manila, this 30th day of June, in the year of Our Lord, nineteen hundred
interim appointments do not apply to appointments solely for the President to make, i.e.,
and eighty-seven.
without the participation of the Commission on Appointments. Ad interim appointments, by
their very nature under the 1987 Constitution, extend only to appointments where the review
of the Commission on Appointments is needed. That is why ad interim appointments are to
remain valid until disapproval by the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the President solely to make, that is,
without the participation of the Commission on Appointments, can not be ad
interim appointments.

EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE
CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT
THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.

Respondent Mallillin contends that with or without confirmation by the Commission on

Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be
removed from said office at anytime, at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the Commission on Appointments,
there was greater reason for her removal by the President and her replacement with
respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become
moot and academic.

We do not agree that the petition has become moot and academic. To insist on such a
posture is akin to deluding oneself that day is night just because the drapes are drawn and
the lights are on. For, aside from the substantive questions of constitutional law raised by
petitioner, the records clearly show that petitioner came to this Court in timely manner and
has not shown any indication of abandoning her petition.

Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full
text of which is as follows:

WHEREAS, the Constitution does not prescribe the term of office of the
Chairman and Members of the Commission on Human Rights unlike those of
other Constitutional Commissions;

By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was
issued by the President, Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission on Human
Rights shall be appointed by the President for a term of seven years without
reappointment. Appointments to any vacancy shall be only for the unexpired
term of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of
the Chairman and Members of the Commission on Human Rights — which is seven (7) years
without reappointment — the later executive order (163-A) speaks of the tenure in office of
the Chairman and Members of the Commission on Human Rights, which is "at the pleasure
of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief
Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and
this fundamental principle would be defeated if Congress could legally make
the tenure of some officials dependent upon the pleasure of the President, by
clothing the latter with blanket authority to replace a public officer before the
expiration of his term. 27
When Executive
t Order No. 163 was issued, the evident purpose was to comply with the
constitutionalh provision that "the term of office and other qualifications and disabilities of the
Members of ethe Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art.
XIII, 1987 Constitution).
P
h
i office of the Chairman (and Members) of the Commission on Human Rights, is
As the term of
l
seven (7) years, without reappointment, as provided by Executive Order No. 163, and
i the constitutional design to give the Commission the needed independence to
consistent with
perform andpaccomplish its functions and duties, the tenure in office of said Chairman (and
p
Members) cannot be later made dependent on the pleasure of the President.
i
n
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
e
because the power of the President, sustained therein, to replace a previously appointed
vice-mayor ofs Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating
the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can
find no application to the Chairman of an INDEPENDENT OFFICE, created not by statute but
by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed
that the Chairman and Members of the Commission on Human Rights shall have a "term of
office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and
vested with the delicate and vital functions of investigating violations of human rights,
pinpointing responsibility and recommending sanctions as well as remedial measures
therefor, can truly function with independence and effectiveness, when the tenure in office of
its Chairman and Members is made dependent on the pleasure of the President. Executive
Order No. 163-A, being antithetical to the constitutional mandate of independence for the
Commission on Human Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly
point to its being plainly at war with the constitutional intent of independence for the
Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for
this body to be constitutionalized is the fact that regardless of who is the
President or who holds the executive power, the human rights issue is of
such importance that it should be safeguarded and it should be independent
of political parties or powers that are actually holding the reins of
government. Our experience during the martial law period made us realize
how precious those rights are and, therefore, these must be safeguarded at
all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the
term or the power of the Commission on Human Rights to be coterminous
with the president, because the President's power is such that if he appoints
a certain commissioner and that commissioner is subject to the President,
therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we would
like to avoid — to make the protection of human rights go beyond the
fortunes of different political parties or administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the
honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and
they believe that there should be an independent Commission on Human
Rights free from executive influence because many of the irregularities on
human rights violations are committed by members of the armed forces and
members of the executive branch of the government. So as to insulate this
body from political interference, there is a need to constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need
for making this a constitutional body free or insulated from interference. I
conferred with former Chief Justice Concepcion and the acting chairman of
the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes,
and they are one in saying that this body should be constitutionalized so that
it will be free from executive control or interferences, since many of the
abuses are committed by the members of the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if
we leave it to Congress, this commission will be within the reach of politicians
and of public officers and that to me is dangerous. We should insulate this
body from political control and political interference because of the nature of
its functions to investigate all forms of human rights violations which are
principally committed by members of the military, by the Armed Forces of the
Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and normally, when
a body is appointed by Presidents who may change, the commission must
remain above these changes in political control. Secondly, the other
important factor to consider are the armed forces, the police forces which
have tremendous power at their command and, therefore, we would need a
commission composed of men who also are beyond the reach of these
forces and the changes in political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed special
body, in order to function effectively, must be invested with an independence
that is necessary not only for its credibility but also for the effectiveness of its
work. However, we want to make a distinction in this Constitution. May be
what happened was that it was referred to the wrong committee. In the
opinion of the committee, this need not be a commission that is similar to the
three constitutional commissions like the COA, the COMELEC, and the Civil
Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office of
the President is not involved in the project. How sure are we that the next
President of the Philippines will be somebody we can trust? Remember,
even now there is a growing concern about some of the bodies, agencies
and commission created by President Aquino. 34
xxx xxx xxx
.... Leaving to Congress the creation of the Commission on Human Rights is
giving less importance to a truly fundamental need to set up a body that will
effectively enforce the rules designed to uphold human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot
be removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may
be filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before
said court. 37 This is due process in action. This is the way of a government of laws and not of
men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista
had elevated her case to this Tribunal, Her Excellency merely designated an Acting
Chairman for the Commission on Human Rights (pending decision in this case) instead of
appointing another permanent Chairman. The latter course would have added only more
legal difficulties to an already difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the
duly appointed Chairman of the Commission on Human Rights and the lawful incumbent
thereof, entitled to all the benefits, privileges and emoluments of said office. The temporary
restraining order heretofore issued by the Court against respondent Mallillin enjoining him
from dismissing or terminating personnel of the Commission on Human Rights is made
permanent.

SO ORDERED.
 Republic of the Philippines Binamira claims that since assuming office, he had discharged the duties of PTA General
SUPREME COURT Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such
Manila by various government offices, including the Office of the President.

EN BANC He complains, though, that on January 2, 1990, his resignation was demanded by
respondent Garrucho as the new Secretary of Tourism. Binamira's demurrer led to an
G.R. No. 92008 July 30, 1990 unpleasant exchange that led to his filing of a complaint against the Secretary with the
Commission on Human Rights. But that is another matter that does not concern us here.
RAMON P. BINAMIRA, petitioner,
vs. What does is that on January 4, 1990, President Aquino sent respondent Garrucho the
PETER D. GARRUCHO, JR., respondent. following memorandum, 2copy furnished Binamira:

Ledesma, Saludo & Associates for petitioner. 4 January 1990

MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism

CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of
General Manager of the Philippine Tourism Authority from which he claims to have been
removed without just cause in violation of his security of tenure.
The petitioner bases his claim on the following communication addressed to him by the
Minister of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism
Authority, effective immediately.
It appearing from the records you have submitted to this Office that the
present General Manager of the Philippine Tourism Authority was designated
not by the President, as required by P.D. No. 564, as amended, but only by
the Secretary of Tourism, such designation is invalid. Accordingly, you are
hereby designated concurrently as General Manager, effective immediately,
until I can appoint a person to serve in the said office in a permanent
capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila

By virtue hereof, you may qualify and enter upon the performance of the
duties of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman,
P.T.A. Board
Garrucho having taken over as General Manager of the PTA in accordance with this
memorandum, the petitioner filed this action against him to question his title. Subsequently,
while his original petition was pending, Binamira filed a supplemental petition alleging that on
April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General
Manager of the Philippine Tourism Authority. Capistrano was impleaded as additional
respondent.

Pursuant thereto, the petitioner assumed office on the same date. The issue presented in this case is starkly simple.

On April 10, 1986, Minister Gonzales sought approval from President Aquino of the
composition of the Board of Directors of the PTA, which included Binamira as Vice-Chairman
in his capacity as General Manager. This approval was given by the President on the same
date. 1
Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as
follows:
SECTION 23-A. General Manager-Appointment and Tenure. — The General
Manager shall be appointed by the President of the Philippines and shall
 serve for a term of six (6) years unless sooner removed for cause; Provided,
That upon the expiration of his term, he shall serve as such until his
successor shall have been appointed and qualified. (As amended by P.D.
1400)
It is not disputed that the petitioner was not appointed by the President of the Philippines but
only designated by the Minister of Tourism. There is a clear distinction between appointment
and designation that the petitioner has failed to consider.
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. 3 When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, 4as
where, in the case before us, the Secretary of Tourism is designated Chairman of the Board
of Directors of the Philippine Tourism Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. 5 It is said that appointment is
essentially executive while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding
of the term. However, where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced at
will by the appointing authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed. The reason is that the decree clearly
provides that the appointment of the General Manager of the Philippine Tourism Authority
shall be made by the President of the Philippines, not by any other officer. Appointment
involves the exercise of discretion, which because of its nature cannot be delegated. Legally
speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion
as an alter ego of the President. The appointment (or designation) of the petitioner was not a
merely mechanical or ministerial act that could be validly performed by a subordinate even if
he happened as in this case to be a member of the Cabinet.
An officer to whom a discretion is entrusted cannot delegate it to another, the
presumption being that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and unless the power to
substitute another in his place has been given to him, he cannot delegate his
duties to another. 6
In those cases in which the proper execution of the office requires, on the
part of the officer, the exercise of judgment or discretion, the presumption is
that he was chosen because he was deemed fit and competent to exercise
that judgment and discretion, and, unless power to substitute another in his
place has been given to him, he cannot delegate his duties to another. 7
Indeed, even on the assumption that the power conferred on the President could be validly
exercised by the Secretary, we still cannot accept that the act of the latter, as an extension or
"projection" of the personality of the President, made irreversible the petitioner's title to the
position in question. The petitioner's conclusion that Minister Gonzales's act was in effect the
act of President Aquino is based only on half the doctrine he vigorously invokes. Justice
Laurel stated that doctrine clearly in the landmark case of Villena v. Secretary of the
Interior, 8 where he described the relationship of the President of the Philippines and the
members of the Cabinet as follows:
... all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases where the
Chief Executive is required by the Constitution or the law to act in person or
the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed
by and through the executive departments, and the acts of the secretaries of
such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive.
The doctrine presumes the acts of the Department Head to be the acts of the President of the
Philippines when "performed and promulgated in the regular course of business," which was
true of the designation made by Minister Gonzales in favor of the petitioner. But it also adds
that such acts shall be considered valid only if not 'disapproved or reprobated by the Chief
Executive," as also happened in the case at bar.
The argument that the designation made by Minister Gonzales was approved by President
Aquino through her approval of the composition of the Board of Directors of the PTA is not
persuasive. It must be remembered that Binamira was included therein as Vice- Chairman
only because of his designation as PTA General Manager by Minister Gonzales. Such
designation being merely provisional, it could be recalled at will, as in fact it was recalled by
the President herself, through the memorandum she addressed to Secretary Garrucho on
January 4, 1990.
With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground.
His designation being an unlawful encroachment on a presidential prerogative, he did not
acquire valid title thereunder to the position in question. Even if it be assumed that it could be
and was authorized, the designation signified merely a temporary or acting appointment that
could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason).i•t•c-
aüsl In either case, the petitioner's claim of security of tenure must be rejected.
The Court sympathizes with the petitioner, who apparently believed in good faith that he was
being extended a permanent appointment by the Minister of Tourism. After all, Minister
Gonzales had the ostensible authority to do so at the time the designation was made. This
belief seemed strengthened when President Aquino later approved the composition of the
PTA Board of Directors where the petitioner was designated Vice-Chairman because of his
position as General Manager of the PTA. However, such circumstances fall short of the
categorical appointment required to be made by the President herself, and not the Minister of
Tourism, under Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never
acquired valid title to the disputed position and so has no right to be reinstated as General
Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

EN BANC
G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge,
Finance Services Department of the Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of
preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of
Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the
constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L.
Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC"
for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr.
("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of
the appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s
Education and Information Department ("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of
the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the
appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15,
2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the
same position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as
COMELEC Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a
term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office
and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their
oaths of office and assumed their positions as COMELEC Commissioners. The Office of the
President submitted to the Commission on Appointments on May 22, 2001 the ad
interim appointments of Benipayo, Borra and Tuason for confirmation.6 However, the
Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra
and Tuason to the same positions and for the same term of seven years, expiring on
February 2, 2008.7 They took their oaths of office for a second time. The Office of the
President transmitted on June 5, 2001 their appointments to the Commission on
Appointments for confirmation.8
Congress adjourned before the Commission on Appointments could act on their
appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the
President submitted their appointments for confirmation to the Commission on
Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
200111 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the
EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law
Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated April 14, 200112 addressed to the
COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’s failure to
consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the
EID and her reassignment to the Law Department.13 Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices
that "transfer and detail of employees are prohibited during the election period beginning
January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18,
2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the powers
conferred upon it by the Constitution, the Omnibus Election Code and other election
laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance of its mandated
functions during the prohibited period, provided that the changes in the assignment of
its field personnel within the thirty-day period before election day shall be effected
after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in
a Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal
complaint16 with the Law Department17 against Benipayo, alleging that her reassignment
violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil
Service Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil
service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant
petition questioning the appointment and the right to remain in office of Benipayo, Borra and
Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims
that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional
provisions on the independence of the COMELEC, as well as on the prohibitions on
temporary appointments and reappointments of its Chairman and members. Petitioner also
assails as illegal her removal as Director IV of the EID and her reassignment to the Law
Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-
Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by
COMELEC Finance Services Department Officer-in-Charge Gideon C. De Guzman to
Benipayo, Borra and Tuason by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again
the ad interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring on February 2, 2008. 18 They
all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may
exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of
the ad interimappointments issued by the President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad
interim appointments and subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID
and her reassignment to the Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in
continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in
excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court
may exercise its power of judicial review in constitutional cases. Out of respect for the acts of
the Executive department, which is co-equal with this Court, respondents urge this Court to
refrain from reviewing the constitutionality of the ad interim appointments issued by the
President to Benipayo, Borra and Tuason unless all the four requisites are present. These
are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the judicial review is
pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the
case.19 Respondents argue that the second, third and fourth requisites are absent in this
case. Respondents maintain that petitioner does not have a personal and substantial interest
in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be lawfully entitled to any of the
positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly
injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3,
2001 despite the fact that the ad interimappointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition was filed after the third time that
these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioner’s reassignment
from the EID to the Law Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law
Department, where she was placed on detail service.20 Respondents claim that the
reassignment was "pursuant to x x x Benipayo’s authority as Chairman of the Commission on
Elections, and as the Commission’s Chief Executive Officer."21 Evidently, respondents anchor
the legality of petitioner’s reassignment on Benipayo’s authority as Chairman of the
COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of
the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office
in accordance with the Constitution, then petitioner’s reassignment is legal and she has no
cause to complain provided the reassignment is in accordance with the Civil Service Law.
Clearly, petitioner has a personal and material stake in the resolution of the constitutionality
of Benipayo’s assumption of office. Petitioner’s personal and substantial injury, if Benipayo is
not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only
on August 3, 2001, when the first ad interimappointments were issued as early as March 22,
2001. However, it is not the date of filing of the petition that determines whether the
constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a competent court that can resolve
the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial,
and, if not considered at the trial, it cannot be considered on appeal."22 Petitioner questioned
the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she
filed her petition before this Court, which is the earliest opportunity for pleading the
constitutional issue before a competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be passed
upon.23 There is no doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of
Benipayo’s ad interimappointment and assumption of office. Unless the constitutionality of
Benipayo’s ad interim appointment and assumption of office is resolved, the legality of
petitioner’s reassignment from the EID to the Law Department cannot be determined. Clearly,
the lis mota of this case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The
legality of the directives and decisions made by the COMELEC in the conduct of the May 14,
2001 national elections may be put in doubt if the constitutional issue raised by petitioner is
left unresolved. In keeping with this Court’s duty to determine whether other agencies of
government have remained within the limits of the Constitution and have not abused the
discretion given them, this Court may even brush aside technicalities of procedure and
resolve any constitutional issue raised.24 Here the petitioner has complied with all the
requisite technicalities. Moreover, public interest requires the resolution of the constitutional
issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary
appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, three Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the
President at her pleasure, and can even be disapproved or simply by-passed by the
Commission on Appointments. For this reason, petitioner claims that an ad
interim appointment is temporary in character and consequently prohibited by the last
sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to
the other two constitutional commissions, namely the Civil Service Commission and the
Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is
also found in Article IX-B and Article IX-D providing for the creation of the Civil Service
Commission and the Commission on Audit, respectively. Petitioner interprets the last
sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot
assume office until his appointment is confirmed by the Commission on Appointments for
only then does his appointment become permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an appointee who is confirmed by the
Commission on Appointments can guarantee the independence of the COMELEC. A
confirmed appointee is beyond the influence of the President or members of the Commission
on Appointments since his appointment can no longer be recalled or disapproved. Prior to his
confirmation, the appointee is at the mercy of both the appointing and confirming powers
since his appointment can be terminated at any time for any cause. In the words of petitioner,
a Sword of Damocles hangs over the head of every appointee whose confirmation is pending
with the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into office.
The fact that it is subject to confirmation by the Commission on Appointments does not alter
its permanent character. The Constitution itself makes an ad interim appointment permanent
in character by making it effective until disapproved by the Commission on Appointments or
until the next adjournment of Congress. The second paragraph of Section 16, Article VII of
the Constitution provides as follows:
"The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the President. The
fear that the President can withdraw or revoke at any time and for any reason an ad interim
appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held
that:
"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section
10, Article VII of the Constitution, which provides that the ‘President shall have the
power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course distinguishable from an
‘acting’ appointment which is merely temporary, good until another permanent
appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and
thus an ad interimappointment takes effect immediately. The appointee can at once assume
office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs.
Secretary of the Commission on Appointments,26 this Court elaborated on the nature of an ad
interim appointment as follows:
"A distinction is thus made between the exercise of such presidential prerogative
requiring confirmation by the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the President nominates, and only
upon the consent of the Commission on Appointments may the person thus named
assume office. It is not so with reference to ad interim appointments. It takes effect at
once. The individual chosen may thus qualify and perform his function without loss of
time. His title to such office is complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the
meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is
undoubtedly temporary in character. This argument is not new and was answered by this
Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we
explained that:
"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ‘ad interim’
appointments which petitioner mistakenly understands as appointments temporary in nature.
Perhaps, it is the literal translation of the word ‘ad interim’ which creates such belief. The term
is defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad
interim is one appointed to fill a vacancy, or to discharge the duties of the office during the
absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of
Philippine law. In referring to Dr. Esteban’s appointments, the term is not descriptive of the
nature of the appointments given to him. Rather, it is used to denote the manner in which
said appointments were made, that is, done by the President of the Pamantasan in the
meantime, while the Board of Regents, which is originally vested by the University Charter
with the power of appointment, is unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn or
revoked at any time. The term, although not found in the text of the Constitution, has acquired
a definite legal meaning under Philippine jurisprudence. The Court had again occasion to
explain the nature of an ad interim appointment in the more recent case of Marohombsar vs.
Court of Appeals,28where the Court stated:
"We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service
Commission Regional Office No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous with a temporary appointment
which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board disapproves
them." (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional
protection that "[n]o officer or employee in the civil service shall be removed or suspended
except for cause provided by law."29 Thus, an ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated to the appointee before the moment
he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.30 Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution.
The first cause is the disapproval of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of Congress without the Commission on
Appointments acting on his appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad interim appointments. These resolutory
conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees.
No one, however, can complain because it is the Constitution itself that places the Sword of
Damocles over the heads of the ad interimappointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an
appointment or designation in a temporary or acting capacity can be withdrawn or revoked at
the pleasure of the appointing power.31A temporary or acting appointee does not enjoy any
security of tenure, no matter how briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent constitutional commissions,
including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at
any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the
Commission on Elections, foremost among which is the security of tenure of its
members. That guarantee is not available to the respondent as Acting Chairman of
the Commission on Elections by designation of the President of the Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution,
which did not have a provision prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor
General as acting member of the COMELEC. This Court ruled that the designation of an
acting Commissioner would undermine the independence of the COMELEC and hence
violate the Constitution. We declared then: "It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to appoint a permanent Commissioner
than to designate one to act temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the
vacancies in the COMELEC, subject only to confirmation by the Commission on
Appointments. Benipayo, Borra and Tuason were extended permanent appointments during
the recess of Congress. They were not appointed or designated in a temporary or acting
capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General
Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the Constitution which authorizes the President,
during the recess of Congress, to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be independent"36 , this provision
should be harmonized with the President’s power to extend ad interim appointments. To hold
that the independence of the COMELEC requires the Commission on Appointments to first
confirm ad interim appointees before the appointees can assume office will negate the
President’s power to make ad interim appointments. This is contrary to the rule on statutory
construction to give meaning and effect to every provision of the law. It will also run counter
to the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers
subject to confirmation by the Commission on Appointments - did not provide for ad interim
appointments. The original intention of the framers of the Constitution was to do away with ad
interim appointments because the plan was for Congress to remain in session throughout the
year except for a brief 30-day compulsory recess. However, because of the need to avoid
disruptions in essential government services, the framers of the Constitution thought it wise to
reinstate the provisions of the 1935 Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps there
should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might
present problems in terms of anticipating interruption of government business,
considering that we are not certain of the length of involuntary recess or adjournment
of the Congress. We are certain, however, of the involuntary adjournment of the
Congress which is 30 days, but we cannot leave to conjecture the matter of
involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner
Aquino and after conferring with the Committee, Commissioner Aquino and I propose
the following amendment as the last paragraph of Section 16, the wordings of which
are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO
MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
 xxx
THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is
approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of
the President was for the purpose of avoiding interruptions in vital government services that
otherwise would result from prolonged vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided
under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale
behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they
expired before the session of Congress, the evil sought to be avoided – interruption
in the discharge of essential functions – may take place. Because the same evil
would result if the appointments ceased to be effective during the session of
Congress and before its adjournment. Upon the other hand, once Congress has
adjourned, the evil aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution
barely avoided the interruption of essential government services in the May 2001 national
elections. Following the decision of this Court in Gaminde vs. Commission on
Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional
officers first appointed under the Constitution would have to be counted starting February 2,
1987, the date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC,
including the Chairman, would end on February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000
to serve, pursuant to her appointment papers, until February 15, 2002,41 the original expiry
date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this
Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was
also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3,
2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed to fall after the May 2001
elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three
vacancies in the seven-person COMELEC, with national elections looming less than three
and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores
vacated their offices on February 2, 2001 and did not question any more before this Court the
applicability of the Gaminderuling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case,
Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she
believed any delay in choosing her successor might create a "constitutional crisis" in view of
the proximity of the May 2001 national elections. Commissioner Desamito chose to file a
petition for intervention44 in the Gaminde case but this Court denied the intervention. Thus,
Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and
June considering that many of the members of the House of Representatives and the Senate
run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June
3, 2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were
originally extended ad interim appointments only on March 22, 2001, to be confirmed by the
Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the
COMELEC instead of two during the May 2001 elections. Considering that the Constitution
requires that "all x x x election cases shall be heard and decided in division", 46 the remaining
one division would have been swamped with election cases. Moreover, since under the
Constitution motions for reconsideration "shall be decided by the Commission en banc", the
mere absence of one of the four remaining members would have prevented a quorum, a less
than ideal situation considering that the Commissioners are expected to travel around the
country before, during and after the elections. There was a great probability that disruptions
in the conduct of the May 2001 elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national elections, right after the
tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to
make ad interimappointments prevented the occurrence of the very evil sought to be avoided
by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad
interim appointments is lodged in the President to be exercised by her in her sound judgment.
Under the second paragraph of Section 16, Article VII of the Constitution, the President can
choose either of two modes in appointing officials who are subject to confirmation by the
Commission on Appointments. First, while Congress is in session, the President may
nominate the prospective appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume office. Second, during the recess of
Congress, the President may extend an ad interim appointment which allows the appointee to
immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad
interim appointment is a matter within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire into the propriety of the choice
made by the President in the exercise of her constitutional power, absent grave abuse of
discretion amounting to lack or excess of jurisdiction on her part, which has not been shown
in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing
practice. Former President Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim
appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also extended ad
interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.49
The President’s power to extend ad interim appointments may indeed briefly put the
appointee at the mercy of both the appointing and confirming powers. This situation,
however, is only for a short period - from the time of issuance of the ad interim appointment
until the Commission on Appointments gives or withholds its consent. The Constitution itself
sanctions this situation, as a trade-off against the evil of disruptions in vital government
services. This is also part of the check-and-balance under the separation of powers, as a
trade-off against the evil of granting the President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s appointing power to the checking power of
the legislature.
This situation, however, does not compromise the independence of the COMELEC as a
constitutional body. The vacancies in the COMELEC are precisely staggered to insure that
the majority of its members hold confirmed appointments, and not one President will appoint
all the COMELEC members.50 In the instant case, the Commission on Appointments had long
confirmed four51 of the incumbent COMELEC members, comprising a majority, who could
now be removed from office only by impeachment. The special constitutional safeguards that
insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and promulgates its own rules on
pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased
during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo,
Borra and Tuason, as COMELEC Chairman and Commissioners, respectively, do not
constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the
Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption
of office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim
appointments and their subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last members for three years, without
reappointment. X x x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on
Appointments, his ad interim appointment can no longer be renewed because this will violate
Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner
asserts that this is particularly true to permanent appointees who have assumed office, which
is the situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed
permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on
Appointments can no longer be extended a new appointment. The disapproval is a final
decision of the Commission on Appointments in the exercise of its checking power on the
appointing authority of the President. The disapproval is a decision on the merits, being a
refusal by the Commission on Appointments to give its consent after deliberating on the
qualifications of the appointee. Since the Constitution does not provide for any appeal from
such decision, the disapproval is final and binding on the appointee as well as on the
appointing power. In this instance, the President can no longer renew the appointment not
because of the constitutional prohibition on reappointment, but because of a final decision by
the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the
Commission on Appointments to organize is another matter. A by-passed appointment is one
that has not been finally acted upon on the merits by the Commission on Appointments at the
close of the session of Congress. There is no final decision by the Commission on
Appointments to give or withhold its consent to the appointment as required by the
Constitution. Absent such decision, the President is free to renew the ad interim appointment
of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission
on Appointments, which provides as follows:
"Section 17. Unacted Nominations or Appointments Returned to the President.
Nominations or appointments submitted by the President of the Philippines which are
not finally acted upon at the close of the session of Congress shall be returned to the
President and, unless new nominations or appointments are made, shall not again be
considered by the Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can
be considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments
of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring
opinion in Guevara vs. Inocentes53why by-passed ad interim appointees could be extended
new appointments, thus:
 "In short, an ad interim appointment ceases to be effective upon disapproval by the
Commission, because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon "the next adjournment of the
Congress", simply because the President may then issue new appointments - not
because of implied disapproval of the Commission deduced from its inaction during
the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the
adjournment of Congress were an implied disapproval of ad interimappointments
made prior thereto, then the President could no longer appoint those so by-passed
by the Commission. But, the fact is that the President may reappoint them, thus
clearly indicating that the reason for said termination of the ad interim appointments
is not the disapproval thereof allegedly inferred from said omission of the
Commission, but the circumstance that upon said adjournment of the Congress, the
President is free to make ad interim appointments or reappointments." (Emphasis
supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of
Section 16, Article VII of the present Constitution on ad interim appointments was
lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad
interim appointments by the President is doubtless applicable to the present Constitution. The
established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-
recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution
which did not provide for a Commission on Appointments but vested sole appointing power in
the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies
neither to disapproved nor by-passed ad interim appointments. A disapproved ad
interim appointment cannot be revived by another ad interimappointment because the
disapproval is final under Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-
passed ad interim appointment can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without reappointment."
(Emphasis supplied) There are four situations where this provision will apply. The first
situation is where an ad interim appointee to the COMELEC, after confirmation by the
Commission on Appointments, serves his full seven-year term. Such person cannot be
reappointed to the COMELEC, whether as a member or as a chairman, because he will then
be actually serving more than seven years. The second situation is where the appointee,
after confirmation, serves a part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed, whether as a member or as a chair, to a
vacancy arising from retirement because a reappointment will result in the appointee also
serving more than seven years. The third situation is where the appointee is confirmed to
serve the unexpired term of someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as a member or chair, to a
vacancy arising from retirement because a reappointment will result in the appointee also
serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation. Even if it will not result in his serving
more than seven years, a reappointment of such person to serve an unexpired term is also
prohibited because his situation will be similar to those appointed under the second sentence
of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees
under the Constitution whose terms of office are less than seven years, but are barred from
ever being reappointed under any situation. Not one of these four situations applies to the
case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term
of office as COMELEC member – whether for a full term of seven years, a truncated term of
five or three years, or even for an unexpired term of any length of time – can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this
manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice
Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for seven years. But in cases
where the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words "without reappointment" in the
case of those appointed, then it is possible that an interpretation could be made later
on their case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case
of those first appointed under the Constitution, no reappointment can be
made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted
Nacionalista vs. De Vera57that a "[r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term will
not exceed nine years in all." This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC member "shall hold office for a
term of nine years and may not be reappointed."
To foreclose this interpretation, the phrase "without reappointment" appears twice in Section
1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any
person previously appointed for a term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a term of five or three years pursuant
to the first set of appointees under the Constitution. In either case, it does not matter if the
person previously appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a fixed term nor an unexpired
term. To hold otherwise would mean that the President by his unilateral action could start and
complete the running of a term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders inutile the confirming power of the
Commission on Appointments.
The phrase "without reappointment" applies only to one who has been appointed by the
President and confirmed by the Commission on Appointments, whether or not such person
completes his term of office. There must be a confirmation by the Commission on
Appointments of the previous appointment before the prohibition on reappointment can apply.
To hold otherwise will lead to absurdities and negate the President’s power to make ad
interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack
of time, on the ad interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President will certainly hesitate to
make ad interim appointments because most of her appointees will effectively be
disapproved by mere inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim appointments, a power intended to
avoid disruptions in vital government services. This Court cannot subscribe to a proposition
that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The
framers of the present Constitution prohibited reappointments for two reasons. The first is to
prevent a second appointment for those who have been previously appointed and confirmed
even if they served for less than seven years. The second is to insure that the members of
the three constitutional commissions do not serve beyond the fixed term of seven years. As
reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored58 the proposed articles on the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common
provision affecting the three Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be automatically and regularly
released to the Commission in the same manner (as) provided for the Judiciary;
2) fixed term of office without reappointment on a staggered basis to ensure
continuity of functions and to minimize the opportunity of the President to appoint all
the members during his incumbency; 3) prohibition to decrease salaries of the
members of the Commissions during their term of office; and 4) appointments of
members would not require confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional
Commission to these four features. First, as discussed earlier, the framers of the Constitution
decided to require confirmation by the Commission on Appointments of all appointments to
the constitutional commissions. Second, the framers decided to strengthen further the
prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the
Commission on Audit remaining in office for 12 years despite his fixed term of seven years.
The following exchange in the deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call
the sponsor’s attention, first of all, to Section 2 (2) on the Civil Service Commission
wherein it is stated: "In no case shall any Member be appointed in a temporary or
acting capacity." I detect in the Committee’s proposed resolutions a constitutional
hangover, if I may use the term, from the past administration. Am I correct in
concluding that the reason the Committee introduced this particular provision is to
avoid an incident similar to the case of the Honorable Francisco Tantuico who was
appointed in an acting capacity as Chairman of the Commission on Audit for about 5
years from 1975 until 1980, and then in 1980, was appointed as Chairman with a
tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion,
he occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7
years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this
manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice
that there is no reappointment of any kind and, therefore as a whole there is no way
that somebody can serve for more than seven years. The purpose of the last
sentence is to make sure that this does not happen by including in the appointment
both temporary and acting capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no
reappointment of any kind. On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of the prohibition on reappointment
that may result in an appointee’s total term of office exceeding seven years. The evils sought
to be avoided by the twin prohibitions are very specific - reappointment of any kind and
exceeding one’s term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened
even further the screws on those who might wish to extend their terms of office. Thus, the
word "designated" was inserted to plug any loophole that might be exploited by violators of
the Constitution, as shown in the following discussion in the Constitutional Commission:
 "MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose
to insert the words OR DESIGNATED so that the whole sentence will read: "In no
case shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no
case shall any Member be appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that
some lawyers make a distinction between an appointment and a designation. The
Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. "In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair
hears none; the amendment is approved."62
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra
and Tuason do not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed
term expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry
date of their terms of office. Consequently, there is no danger whatsoever that the renewal of
the ad interim appointments of these three respondents will result in any of the evils intended
to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad
interim appointment of these three respondents, for so long as their terms of office expire on
February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article
IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting
as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from office without due process and
therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the
office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de
jure COMELEC Chairman, and consequently he has full authority to exercise all the powers
of that office for so long as his ad interim appointment remains effective. Under Section 7 (4),
Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman of the
COMELEC is vested with the following power:
"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who
shall be the Chief Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with
the provisions of the Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the Civil Service
Law. In the exercise of this power, the Chairman is not required by law to secure the approval
of the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15,
2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held
her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a
Career Executive Service (CES) officer, and neither does she hold Career Executive Service
Eligibility, which are necessary qualifications for holding the position of Director IV as
prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service
Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV.
In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person
who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed.’ Achacoso did not.
At best, therefore, his appointment could be regarded only as temporary. And
being so, it could be withdrawn at will by the appointing authority and ‘at a
moment’s notice’, conformably to established jurisprudence x x x.
 The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it.
A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place, or as an exception to the rule, may
be appointed to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be regarded as
permanent even if it may be so designated x x x.’"
Having been appointed merely in a temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director IV, petitioner has no legal basis in
claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous
argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at
the pleasure of the appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a
prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as
follows:
"Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon prior
approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to
effect transfers or reassignments of COMELEC personnel during the election
period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every
transfer or reassignment of COMELEC personnel during the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No.
3300 dated November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the
Omnibus Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election
Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service – Any public official
who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the
election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local
elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the
Commission on Elections during the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest, peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections by virtue of the powers
conferred upon it by the Constitution, the Omnibus Election Code and other election
laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance of its mandated
functions during the prohibited period, provided that the changes in the assignment of
its field personnel within the thirty-day period before election day shall be effected
after due notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any
transfer or reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested
with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will
logically exercise the authority to transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this
power because that will mean amending the Revised Administrative Code, an act the
COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of
COMELEC personnel should carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or
reassignment of COMELEC personnel during the election period. Thus, Benipayo’s order
reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of
the Omnibus Election Code. For the same reason, Benipayo’s order designating Cinco
Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of

the Finance Services Department of the Commission on Elections, did not act in excess of
jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and
Cinco.

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

SO ORDERED.
 Republic of the Philippines Avelino J. Cruz, Jr. National Defense 23 August 2004
SUPREME COURT Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
EN BANC
Michael T. Defensor Environment and Natural Resources 23 August 2004

G.R. No. 164978 October 13, 2005

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P.
EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and SERGIO R. OSMEÑA III, Petitioners
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ,
JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO
G. ROMULO, RENE C. VILLA, and ARTHUR C. YAP, Respondents.
DECISION
The appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY,
DEPARTMENT OF (appropriate department) vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions
of the office, furnishing this Office and the Civil Service Commission with copies of your Oath
of Office.

CARPIO, J.: (signed)

The Case Gloria Arroyo

This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of
preliminary injunction to declare unconstitutional the appointments issued by President Gloria
Macapagal-Arroyo ("President Arroyo") through Executive Secretary Eduardo R. Ermita
("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph
H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap
("respondents") as acting secretaries of their respective departments. The petition also seeks
to prohibit respondents from performing the duties of department secretaries.
Antecedent Facts
The Senate and the House of Representatives ("Congress") commenced their regular
session on 26 July 2004. The Commission on Appointments, composed of Senators and
Representatives, was constituted on 25 August 2004.
Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara
("Senator Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada ("Senator
Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator
Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and
Sergio R. Osmeña, III ("Senator Osmeña") ("petitioners") filed the present petition as
Senators of the Republic of the Philippines.
Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo
issued ad interimappointments3 to respondents as secretaries of the departments to which
they were previously appointed in an acting capacity. The appointment papers are uniformly
worded as follows:

Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries of Sir:

their respective departments.
Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD
Appointee Department Date of Appointment INTERIM], DEPARTMENT OF (appropriate department).
Arthur C. Yap Agriculture 15 August 2004
By virtue hereof, you may qualify and enter upon the performance of the duties and functions
Alberto G. Romulo Foreign Affairs 23 August 2004
of the office, furnishing this Office and the Civil Service Commission with copies of your oath
Raul M. Gonzalez Justice 23 August 2004 of office.
Florencio B. Abad Education 23 August 2004
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyo’s appointment of respondents
as acting secretaries without the consent of the Commission on Appointments while
Congress is in session.
The Court’s Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had
extended to respondents ad interim appointments on 23 September 2004 immediately after
the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done. 4 However, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review.5
In the present case, the mootness of the petition does not bar its resolution. The question of
the constitutionality of the President’s appointment of department secretaries in an acting
capacity while Congress is in session will arise in every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not interfere
with the exercise of this executive power except in those instances when the Constitution
expressly allows it to interfere.6 Limitations on the executive power to appoint are construed
strictly against the legislature.7 The scope of the legislature’s interference in the executive’s
power to appoint is limited to the power to prescribe the qualifications to an appointive office.
Congress cannot appoint a person to an office in the guise of prescribing qualifications to that
office. Neither may Congress impose on the President the duty to appoint any particular
person to an office.8
However, even if the Commission on Appointments is composed of members of Congress,
the exercise of its powers is executive and not legislative. The Commission on Appointments
does not legislate when it exercises its power to give or withhold consent to presidential
appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its
membership is confined to members of Congress, said Commission is independent of
Congress. The powers of the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In fact, the functions of the
Commissioner are purely executive in nature. xxx 9
On Petitioners’ Standing
The Solicitor General states that the present petition is a quo warranto proceeding because,
with the exception of Secretary Ermita, petitioners effectively seek to oust respondents for
unlawfully exercising the powers of department secretaries. The Solicitor General further
states that petitioners may not claim standing as Senators because no power of the
Commission on Appointments has been "infringed upon or violated by the President. xxx If at
all, the Commission on Appointments as a body (rather than individual members of the
Congress) may possess standing in this case."10
Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over
unconstitutional acts of the President.11 Petitioners further contend that they possess
standing because President Arroyo’s appointment of department secretaries in an acting
capacity while Congress is in session impairs the powers of Congress. Petitioners
cite Sanlakas v. Executive Secretary12 as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is error
for petitioners to claim standing in the present case as members of Congress. President
Arroyo’s issuance of acting appointments while Congress is in session impairs no power of
Congress. Among the petitioners, only the following are members of the Commission on
Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson
as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and
Senator Osmeña as members.
Thus, on the impairment of the prerogatives of members of the Commission on
Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have
standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and
Madrigal, who, though vigilant in protecting their perceived prerogatives as members of
Congress, possess no standing in the present petition.
The Constitutionality of President Arroyo’s Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have appointed respondents as acting
secretaries because "in case of a vacancy in the Office of a Secretary, it is only an
Undersecretary who can be designated as Acting Secretary."13 Petitioners base their
argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"), 14 which
enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latter’s absence or inability to
discharge his duties for any cause or in case of vacancy of the said office, unless otherwise
provided by law. Where there are more than one Undersecretary, the Secretary shall allocate
the foregoing powers and duties among them. The President shall likewise make the
temporary designation of Acting Secretary from among them; and
xxx
Petitioners further assert that "while Congress is in session, there can be no appointments,
whether regular or acting, to a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its consent."15
In sharp contrast, respondents maintain that the President can issue appointments in an
acting capacity to department secretaries without the consent of the Commission on
Appointments even while Congress is in session. Respondents point to Section 16, Article VII
of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress.
Respondents also rely on EO 292, which devotes a chapter to the President’s power of
appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall exercise the power to appoint
such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily
designate an officer already in the government service or any other competent person
to perform the functions of an office in the executive branch, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the office is unable to
perform his duties by reason of illness, absence or any other cause; or (b) there exists
a vacancy[.]
(2) The person designated shall receive the compensation attached to the position, unless he
is already in the government service in which case he shall receive only such additional
compensation as, with his existing salary, shall not exceed the salary authorized by law for
the position filled. The compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners
assert that the President cannot issue appointments in an acting capacity to department
secretaries while Congress is in session because the law does not give the President such
power. In contrast, respondents insist that the President can issue such appointments
because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time until the appointment of a permanent
occupant to the office.16 In case of vacancy in an office occupied by an alter ego of the
President, such as the office of a department secretary, the President must necessarily
appoint an alter ego of her choice as acting secretary before the permanent appointee of her
choice could assume office.
Congress, through a law, cannot impose on the President the obligation to appoint
automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary
or permanent, holds a position of great trust and confidence. Congress, in the guise of
prescribing qualifications to an office, cannot impose on the President who her alter
ego should be.
The office of a department secretary may become vacant while Congress is in session. Since SO ORDERED.
a department secretary is the alter ego of the President, the acting appointee to the office
must necessarily have the President’s confidence. Thus, by the very nature of the office of a
department secretary, the President must appoint in an acting capacity a person of her
choice even while Congress is in session. That person may or may not be the permanent
appointee, but practical reasons may make it expedient that the acting appointee will also be
the permanent appointee.

The law expressly allows the President to make such acting appointment. Section 17,
Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate
an officer already in the government service or any other competent person to perform the
functions of an office in the executive branch." Thus, the President may even appoint in an
acting capacity a person not yet in the government service, as long as the President deems
that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the President by
the Constitution, because it only applies to appointments vested in the President by law.
Petitioners forget that Congress is not the only source of law. "Law" refers to the Constitution,
statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to
law, and judicial decisions.17

Finally, petitioners claim that the issuance of appointments in an acting capacity is

susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one
year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law
has incorporated this safeguard to prevent abuses, like the use of acting appointments as a
way to circumvent confirmation by the Commission on Appointments.

In distinguishing ad interim appointments from appointments in an acting capacity, a noted

textbook writer on constitutional law has observed:

Ad-interim appointments must be distinguished from appointments in an acting capacity. Both

of them are effective upon acceptance. But ad-interim appointments are extended only during
a recess of Congress, whereas acting appointments may be extended any time there is a
vacancy. Moreover ad-interim appointments are submitted to the Commission on
Appointments for confirmation or rejection; acting appointments are not submitted to the
Commission on Appointments. Acting appointments are a way of temporarily filling important
offices but, if abused, they can also be a way of circumventing the need for confirmation by
the Commission on Appointments.18

However, we find no abuse in the present case. The absence of abuse is readily apparent
from President Arroyo’s issuance of ad interim appointments to
respondents immediately upon the recess of Congress, way before the lapse of one year.

WHEREFORE, we DISMISS the present petition for certiorari and prohibition.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 189028 July 16, 2013
NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL ARTIST FOR
LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST FOR VISUAL ARTS
(SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST FOR VISUAL ARTS
(PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL ARTIST FOR PRODUCTION
DESIGN SALVADOR BERNAL, UNIVERSITY PROFESSOR EMERITUS GEMINO ABAD,
DEAN MARVIC M.V.F. LEONEN (UP COLLEGE OF LAW), DEAN DANILO SILVESTRE
(UP COLLEGE OF ARCHITECTURE), DEAN ROLAND TOLENTINO (UP COLLEGE OF
MASS COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON JUAN, DR. ALEXANDER
CORTEZ, DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ REYES, PROF. JOSE
CLAUDIO GUERRERO, PROF. MICHAEL M. COROZA, PROF. GERARD LICO, PROF.
VERNE DE LA PENA, PROF. MARIAN ABUAN, PROF. THEODORE O. TE, DR. CRISTINA
PANTOJA-HIDALGO, PROF. JOSE WENDELL CAPILI, PROF. SIR ANRIAL TIATCO,
PROF. NICOLO DEL CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON
REMOTO, PROF. PRISCELINA PATAJOLEGASTO, PROF. BELEN CALINGACION,
PROF. AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF. MARILYN CANTA, PROF.
CECILIA DELA PAZ, ROF. CHARLSON ONG, PROF. CLOD MARLON YAMBAO, PROF.
KENNETH JAMANDRE, PROF. JETHRO JOAQUIN, ATTY. F.D. NICOLAS B. PICHAY,
ATTY. ROSE BEATRIX ANGELES, MR. FERNANDO JOSEF, MS. SUSAN S. LARA, MR.
ALFRED YUSON, MS. JING PANGANIBANMENDOZA, MR. ROMULO BAQUIRAN, JR.,
MR. CARLJOE JAVIER, MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D. CUNADA,
MS. LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL OLEA
MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR. ANGELO R.
LACUESTA, MS. ANNA MARIA KATIGBAKLACUESTA, MR. LEX LEDESMA, MS. KELLY
PERIQUET, MS. CARLA PACIS, MR. J. ALBERT GAMBOA, MR. CESAR EVANGELISTA
BUENDIA, MR. PAOLO ALCAZAREN, MR. ALWYN C. JAVIER, MR. RAYMOND MAGNO
GARLITOS, MS. GANG BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS.
JUDITH TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS.
CAMILLE DE LA ROSA, MR. JAMES LADIORAY, MR. RENATO CONSTANTINO, JR.,
and CONCERNED ARTISTS OF THE PHILIPPINES (CAP), Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL
COMMISSION ON CULTURE AND THE ARTS, MS. CECILE GUIDOTE-ALVAREZ, MR.
CARLO MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO MANOSA,
AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR INSTRUCTIONS,
DIRECTION, CONTROL AND SUPERVISION IN RELATION TO THE CONFERMENT OF
THE ORDER OF THE NATIONAL ARTIST AND THE RELEASE OF FUNDS IN RELATION
TO THE CONFERMENT OF THE HONORS AND PRIVILEGES OF THE ORDER OF
NATIONAL ARTISTS ON RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS, MORENO
AND MANOSA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Art has traditionally been viewed as the expression of everything that is true, good and
beautiful. As such, it is perceived to evoke and produce a spirit of harmony. Art is also
considered as a civilizing force, a catalyst of nation-building. The notion of art and artists as
privileged expressions of national culture helped shape the grand narratives of the nation and
shared symbols of the people. The artist does not simply express his/her own individual
inspiration but articulates the deeper aspirations of history and the soul of the people. 2 The
law recognizes this role and views art as something that "reflects and shapes values, beliefs,
aspirations, thereby defining a people’s national identity." 3If unduly politicized, however, art
and artists could stir controversy and may even cause discord, as what happened in this
case.
The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation No.
10014 and, upon recommendation of the Board of Trustees of the Cultural Center of the
Philippines (CCP), created the category of Award and Decoration of National Artist to be
awarded to Filipinos who have made distinct contributions to arts and letters. In the same
issuance, Fernando Amorsolo was declared as the first National Artist.
On May 15, 1973, Proclamation No. 11445 was issued. It amended Proclamation No. 1001
"by creating a National Artists Awards Committee" that would "administer the conferment of
the category of National Artist" upon deserving Filipino artists. The Committee, composed of
members of the Board of Trustees of the CCP, was tasked to "draft the rules to guide its
deliberations in the choice of National Artists, to the end that those who have created a body
of work in the arts and letters capable of withstanding the test of time will be so recognized."
The authority of the National Artists Awards Committee to administer the conferment of the
National Artist Award was again reiterated in Presidential Decree No. 2086 issued on June 7,
1973.
On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating the National
Commission for Culture and the Arts, was signed into law. It established the National
Commission for Culture and the Arts (NCCA) and gave it an extensive mandate over the
development, promotion and preservation of the Filipino national culture and arts and the
Filipino cultural heritage. The NCCA was tasked with the following:
Sec. 8. The Commission. – A National Commission for Culture and Arts is hereby created to
formulate policies for the development of culture and arts; implement these policies in
coordination with affiliated cultural agencies; coordinate the implementation of programs of
these affiliated agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom; develop and
promote the Filipino national culture and arts; and preserve Filipino cultural heritage. The
Commission shall be an independent agency. It shall render an annual report of its activities
and achievements to the President and to Congress.
Among the specific mandates of the NCCA under Republic Act No. 7356 is to "extend
recognition of artistic achievement through awards, grants and services to artists and cultural
groups which contribute significantly to the Filipino’s cultural legacy."7 In connection with this
mandate, the NCCA is vested with the power to "advise the President on matters pertaining
to culture and the arts, including the creation of a special decoration or award, for persons
who have significantly contributed to the development and promotion of Philippine culture and
arts."8
As both the CCP Board of Trustees and the NCCA have been mandated by law to promote,
develop and protect the Philippine national culture and the arts, and authorized to give
awards to deserving Filipino artists, the two bodies decided to team up and jointly administer
the National Artists Award.9 Thereafter, they reviewed the guidelines for the nomination,
selection and administration of the National Artists Award. Pursuant to their respective
powers to draft and promulgate rules, regulations and measures to guide them in their
deliberations in the choice of National Artists, the CCP and NCCA adopted the following
revised guidelines in September 200710:
4. ADMINISTRATION OF THE AWARD
4.1. The National Commission for Culture and the Arts (NCCA) shall plan,
organize and implement the Order of National Artists in coordination with the
Cultural Center of the Philippines (CCP).
4.2. It shall enlist the support and cooperation of private sector experts from
the various fields of art to ensure that the awards are implemented in a
successful and impartial manner.
4.3. The National Artist Award Secretariat shall commission art experts to
form a Special Research Group who shall verify information submitted on
nominees and provide essential data.
They shall be selected for their specialization and familiarity with the works
and accomplishments of nominated artists.
4.4. The Special Research Group shall be composed of ten (10) to twenty
(20) members who have expertise in one or more fields or disciplines.
4.5. The National Artist Award Council of Experts shall be created before or
during the nomination period. It is tasked to screen nominees and
recommend to the NCCA and CCP Boards the candidates for the Order of
National Artists. It shall be composed of highly regarded peers, scholars,
(including cultural philosophers and historians), academicians, researchers,
art critics, and other knowledgeable individuals. A wider age-range of experts
who would have first-hand knowledge of achievements of nominees shall be
considered.
4.6. The selection of the members of the National Artist Award Council of
Experts shall be based on the following criteria:
(a) should have achieved authority, credibility and track record in his
field(s) of expertise;
(b) should have extensive knowledge in his field(s) and his views on
Philippine art and culture must be national in perspective;
(c) should be a recognized authority in the study or research of
Philippine art and culture;
(d) must be willing to devote sufficient time and effort to the work of
the Council;
(e) must be willing to sign a non-disclosure statement in order to
safeguard the confidentiality of the deliberations;
(f) must not have been convicted with finality of any crime by a court
of justice or dismissed for cause by any organization, whether public
or private.
4.7. The National Artist Award Council of Experts shall be composed of a
maximum of seven (7) members each of the seven (7) areas/disciplines. The
living National Artists will automatically become members in addition to the
forty-nine (49) selected members. These members will constitute the first
deliberation panel and will be invited to evaluate the nominations and
materials submitted by the Special Research Group.
4.8. Any member of the Council of Experts who is nominated or related to a
nominee up to the fourth degree of consanguinity or affinity shall inhibit
himself/herself from the deliberation process. Likewise, any member may
decline to participate in the deliberation for any reason or may be removed
for just cause upon recommendation to the NCCA Board by at least two
thirds (2/3) of the members; in which case, the National Artist Award
 Secretariat shall again select the replacements for those who decline or
resigned until the first deliberation panel is completed.
4.9. The list of nominated members of the National Artist Award Council of
Experts shall be reviewed by the National Artist Award Secretariat as
needed, for purposes of adding new members or replacements.
4.10. The members of the National Artist Award Council of Experts shall
serve for a fixed term of three (3) years.
5. CRITERIA FOR SELECTION
The Order of National Artists shall be given to:
5.1 Living artists who are Filipino citizens at the time of nomination, as well
as those who died after the establishment of the award in 1972 but were
Filipino citizens at the time of their death.
5.2 Artists who through the content and form of their works have contributed
in building a Filipino sense of nationhood.
5.3. Artists who have pioneered in a mode of creative expression or style,
thus, earning distinction and making an impact on succeeding generations of
artists.
5.4. Artists who have created a substantial and significant body of works
and/or consistently displayed excellence in the practice of their art form thus
enriching artistic expression or style.
5.5 Artists who enjoy broad acceptance through:
5.5.1. prestigious national and/or international recognition, such as
the Gawad CCP Para sa Sining, CCP Thirteen Artists Award and
NCCA Alab ng Haraya
5.5.2. critical acclaim and/or reviews of their works
5.5.3. respect and esteem from peers.
6. NOMINATION PROCEDURE
6.1. The National Artist Award Secretariat shall announce the opening of
nominations through media releases and letters to qualified organizations.
6.2. Candidates may be nominated under one or more of the following
categories:
6.2.1. Dance – choreography, direction and/or performance.
6.2.2. Music – composition, direction, and/or performance.
6.2.3. Theater – direction, performance and/or production design.
6.2.4. Visual Arts – painting, sculpture, printmaking, photography, installation
art, mixed media works, illustration, comics/komiks, graphic arts,
performance art and/or imaging.
6.2.5. Literature – poetry, fiction (short story, novel and play); non-fiction
(essay, journalism, literary criticism and historical literature).
6.2.6. Film and Broadcast Arts – direction, writing, production design,
cinematography, editing, camera work, and/or performance.
6.2.7. Architecture, Design and Allied Arts – architecture design, interior
design, industrial arts design, landscape architecture and fashion design.
6.3. Nominations for the Order of National Artists may be submitted by
government and non-government cultural organizations and educational
institutions, as well as private foundations and councils.
6.4. Members of the Special Research Group, as well as agencies attached
to the NCCA and CCP shall not submit nominations.
6.5. NCCA and CCP Board members and consultants and NCCA and CCP
officers and staff are automatically disqualified from being nominated.
6.6. Nominations shall be accepted only when these are submitted in writing
and with proper supporting documentation, as follows:
6.6.1. A cover letter signed by the head or designated representative
of the nominating organization.
The cover letter shall be accompanied by a Board Resolution
approving the nominee concerned with the said resolution signed by
the organization President and duly certified by the Board Secretary.
6.6.2. A duly accomplished nomination form;
 6.6.3. A detailed curriculum vitae of the nominee;
6.6.4. A list of the nominee’s significant works categorized according
to the criteria;
6.6.5. The latest photograph (color or black and white) of the
nominee, either 5" x 7" or 8" x 11";
6.6.6. Pertinent information materials on the nominee’s significant
works (on CDs, VCDs and DVDs);
6.6.7. Copies of published reviews;
6.6.8. Any other document that may be required.
6.7. Nominations received beyond the announced deadline for the
submission of nominations shall not be considered.
6.8. The National Artist Award Secretariat shall announce the opening of
nominations through media releases.
6.9. All inquiries and nominations shall be submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director Cultural Center of the Philippines Roxas Boulevard, 1300 Pasay
City or The NATIONAL ARTIST AWARD SECRETARIAT Office of the Deputy Executive
Director National Commission for Culture and the Arts 633 General Luna Street, Intramuros,
Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat shall pre-screen the nominees
based on technical guideline items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-
screening shall not be based on the accomplishments and merits of the
nominee.
7.2. The Special Research Group shall accomplish its task within six (6)
months. The main objective is to verify the validity of the data, and evaluate
the quality, true value and significance of works according to the criteria. It
shall come up with the updated and comprehensive profiles of nominees
reflecting their most outstanding achievements.
7.3. The National Artist Award Secretariat will meet to review the list of
nominees for oversights. Consequently, deserving nominees shall be added
to the list.
7.4. The first deliberation panel (Council of Experts) shall be intra-
disciplinary. The panelists shall be grouped according to their respective
fields of expertise or disciplines to shortlist the nominees in their disciplines
or categories for presentation to the second deliberation panel.
7.5. The second deliberation panel shall be composed of a different set of
experts from the first deliberation panel three (3) experts each of the seven
(7) areas/discipline and may include members from varying backgrounds
such as critics and academicians. The achievements of each shortlisted
nominee shall be presented by one designated member of Council of
Experts. Then panel deliberates and ranks the shortlisted nominees
according to the order of precedence following the set criteria of the Order of
National Artists. In extreme cases, the Second Deliberation may add new
names to the lists.
7.6. The second deliberation panel may recommend not to give award in any
category if no nominee is found deserving. The number of awardees shall
also depend on the availability of funds. All decisions and recommendations
shall be in writing.
7.7. The recommendations from the Second Deliberation Panel of the
National Artist Award Council of Experts shall then be presented to the joint
boards of NCCA and CCP for final selection. The presentors shall prepare
their presentation in writing together with an audio-visual presentation or
powerpoint presentation. Written interpellations/opinions will be accepted
from selected critics. The review shall be based on the ranking done by the
Second Deliberation. The voting shall be across disciplines. The National
Artists will be given the option whether to vote on all categories or on his/her
particular discipline.
7.8. Proxy votes will not be allowed in the Selection Process. Designation of
permanent representatives of agencies should be made at the outset to
make them regular Board members of NCCA and thus, may be allowed to
cast votes.
7.9. The list of awardees shall be submitted to the President of the Republic
of the Philippines for confirmation, proclamation and conferral.
8. PRESENTATION OF THE AWARDS
 8.1. The Order of National Artists shall not be conferred more frequently than
every three (3) years.
8.2. The Order of National Artists shall be conferred by the President of the
Philippines on June 11 or any appropriate date in fitting ceremonies to be
organized by the National Artist Secretariat.
8.3. The medallion of the Order of National Artists and citation shall be given
to the honoree during the conferment ceremony. The cash award of
₱100,000.00 in cheque shall be given immediately after the ceremony or at
another time and place as requested by the honoree.
8.4. A posthumous conferral consisting of the medallion and citation shall be
given to the family or legal heir/s of the honoree. The cash award of
₱75,000.00 in cheque shall be given to the honoree’s legal heir/s or a
representative designated by the family immediately after the ceremony or at
another time and place as requested by the family. (Emphases supplied.)
In 1996, the NCCA and the CCP created a National Artist Award Secretariat composed of the
NCCA Executive Director as Chairperson, the CCP President as Vice-Chairperson, and the
NCCA Deputy Executive Director, the CCP Vice-President/Artistic Director, the NCCA
National Artist Award Officer and the CCP National Artist Award Officer as members. They
also centralized with the NCCA all financial resources and management for the administration
of the National Artists Award. They added another layer to the selection process to involve
and allow the participation of more members of the arts and culture sector of the Philippines
in the selection of who may be proclaimed a National Artist.
On September 19, 2003, Executive Order No. 236, s. 2003, entitled Establishing the Honors
Code of the Philippines to Create an Order of Precedence of Honors Conferred and for Other
Purposes, was issued. The National Artists Award was renamed the Order of National Artists
and raised to the level of a Cultural Order, fourth in precedence among the orders and
decorations that comprise the Honors of the Philippines. Executive Order No. 236, s. 2003,
recognizes the vital role of the NCCA and the CCP in identifying Filipinos who have made
distinct contributions to arts and letters and states that the National Artist recognition is
conferred "upon the recommendation of the Cultural Center of the Philippines and the
National Commission for Culture and the Arts."12 Executive Order No. 236, s. 2003, further
created a Committee on Honors to "assist the President in evaluating nominations for
recipients of Honors,"13 including the Order of National Artists, and presidential awards. The
Committee on Honors has been allowed to "authorize relevant department or government
agencies to maintain Honors and/or Awards Committees to process nominations for Honors
and/or Presidential Awards."14 In this connection, Section 2.4(A) of the Implementing Rules
and Regulations15 of Executive Order No. 236, s. 2003, states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is composed of the
following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery
shall process nominations for the consideration of the Committee on Honors. The Committee
on Honors shall screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a screening committee to ensure
that nominations received from the various awards committees meet two tests: that there has
not been an abuse of discretion in making the nomination, and that the nominee is in good
standing. Should a nomination meet these criteria, a recommendation to the President for
conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors in
the highest consideration when making the final decision on the conferment of awards.
(Emphasis supplied.)
Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive Order No.
236 Entitled "Establishing the Honors Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for Other Purposes" was subsequently issued on June
8, 2005. It amended the wording of Executive Order No. 236, s. 2003, on the Order of
National Artists and clarified that the NCCA and the CCP "shall advise the President on the
conferment of the Order of National Artists."
Controversy Surrounding the 2009
Order of National Artists
 Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA Board of
Commissioners and the CCP Board of Trustees was held to discuss, among others, the
evaluation of the 2009 Order of National Artists and the convening of the National Artist
Award Secretariat. The nomination period was set for September 2007 to December 31,
2007, which was later extended to February 28, 2008. The pre-screening of nominations was
held from January to March 2008.16
On April 3, 2009, the First Deliberation Panel met.17 A total of 87 nominees18 were considered
during the deliberation and a preliminary shortlist19 of 32 names was compiled.
On April 23, 2009, the Second Deliberation Panel purportedly composed of an entirely new
set of Council of Experts met and shortlisted 13 out of the 32 names in the preliminary
shortlist.20 On May 6, 2009, the final deliberation was conducted by the 30-member Final
Deliberation Panel comprised of the CCP Board of Trustees and the NCCA Board of
Commissioners and the living National Artists.21 From the 13 names in the second shortlist, a
final list of four names was agreed upon.22 The final list, according to rank, follows:
2. Dr. RAMON SANTOS – Music
3. Mr. LAZARO FRANCISCO+ (Posthumous) – Literature
4. Mr. FEDERICO AGUILAR-ALCUAZ – Visual Arts
The above persons were identified by experts in the various fields of arts and culture,
including living National Artists. An intensive selection process was observed following
established practice. In the past, awards were presented by the President at a Ceremony
held at the Malacañan Palace followed by a program called "Parangal" at the Cultural Center
of the Philippines. We also propose to continue with past practice of celebrating the life and
works of the four (4) Order of National Artists through an exhibit that will open and a
commemorative publication that will be released on the day of the proclamation.
We respectfully suggest, subject to Her Excellency’s availability, that the Proclamation be on
June 11, 2009, if possible at the Malacañan Palace.

Name Art Field/Category Number of Votes Thank you for your kind attention.
Manuel Conde (+) Film and Broadcast Arts (Film) 26
Very respectfully yours,
Ramon Santos Music 19
Lazaro Francisco (+) Literature 15 (Sgd.)
VILMA L. LABRADOR
Federico Aguilar-Alcuaz Visual Arts 15 Chairman
National Commission for Culture and the Arts
On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA, Undersecretary
Vilma Labrador, and the President and Artistic Director of the CCP, Mr. Nestor Jardin, was (Sgd.)
sent to the President.23 The letter stated, thus: NESTOR O. JARDIN
President and Artistic Director
Cultural Center of the Philippines24
May 6, 2009
According to respondents, the aforementioned letter was referred by the Office of the
Her Excellency GLORIA MACAPAGAL-ARROYO President to the Committee on Honors. Meanwhile, the Office of the President allegedly
President of the Philippines received nominations from various sectors, cultural groups and individuals strongly endorsing
Malacañan Palace, Manila private respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa
and Jose Moreno. The Committee on Honors purportedly processed these nominations and
Subject: 2009 Order of National Artist Awardees invited resource persons to validate the qualifications and credentials of the nominees. 25

Dear President Arroyo:
We are respectfully submitting a recommendation of the NCCA Board of Trustees and CCP
Board of Trustees for the Proclamation of the following as 2009 Order of National Artists:
1. Mr. MANUEL CONDE+ (Posthumous) – Film and Broadcast Arts
The Committee on Honors thereafter submitted a memorandum to then President Gloria
Macapagal-Arroyo recommending the conferment of the Order of National Artists on the four
recommendees of the NCCA and the CCP Boards, as well as on private respondents
Guidote-Alvarez, Caparas, Mañosa and Moreno. Acting on this recommendation,
Proclamation No. 1823 declaring Manuel Conde a National Artist was issued on June 30,
2009. Subsequently, on July 6, 2009, Proclamation Nos. 1824 to 1829 were issued declaring
Lazaro Francisco, Federico AguilarAlcuaz and private respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno, respectively, as National Artists. This was subsequently
announced to the public by then Executive Secretary Eduardo Ermita on July 29, 2009.26
Convinced that, by law, it is the exclusive province of the NCCA Board of Commissioners and
the CCP Board of Trustees to select those who will be conferred the Order of National Artists
and to set the standard for entry into that select group, petitioners instituted this petition for
prohibition, certiorari and injunction (with prayer for restraining order) praying that the Order
of National Artists be conferred on Dr. Santos and that the conferment of the Order of
National Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno be enjoined
and declared to have been rendered in grave abuse of discretion.27
In a Resolution28 dated August 25, 2009, the Court issued a status quo order29 enjoining
"public respondents" "from conferring the rank and title of the Order of National Artists on
private respondents; from releasing the cash awards that accompany such conferment and
recognition; and from holding the acknowledgment ceremonies for recognition of the private
respondents as National Artists."
What is the nature and scope of the power of the President to confer the Order of the
National Artists and how should it be exercised? This is the essential issue presented in this
case. It will determine whether the proclamation of respondents as National Artists is valid.
Preliminary procedural issues on the standing of the petitioners and the propriety of the
remedies taken,30 however, call for resolution as a prerequisite to the discussion of the main
question.
Contention of the Parties
A perusal of the pleadings submitted by the petitioners reveals that they are an aggrupation
of at least three groups, the National Artists, cultural workers and academics, and the
Concerned Artists of the Philippines (CAP). The National Artists assert an "actual as well as
legal interest in maintaining the reputation of the Order of National Artists."31 In particular,
they invoke their right to due process not to have the honor they have been conferred with
diminished by the irregular and questionable conferment of the award on respondents
Guidote-Alvarez, Caparas, Mañosa and Moreno. For petitioners, this would adversely affect
their right to live a meaningful life as it detracts not only from their right to enjoy their honor as
a fruit of their lifelong labor but also from the respect of their peers. 32
The cultural workers, academics and CAP claim to be Filipinos who are deeply concerned
with the preservation of the country’s rich cultural and artistic heritage. As taxpayers, they are
concerned about the use of public monies for illegal appointments or spurious acts of
discretion.33
All of the petitioners claim that former President Macapagal-Arroyo gravely abused her
discretion in disregarding the results of the rigorous screening and selection process for the
Order of National Artists and in substituting her own choice for those of the Deliberation
Panels. According to petitioners, the President’s discretion to name National Artists is not
absolute but limited. In particular, her discretion on the matter cannot be exercised in the
absence of or against the recommendation of the NCCA and the CCP. In adding the names
of respondents Caparas, Guidote-Alvarez, Mañosa and Moreno while dropping Dr. Santos
from the list of conferees, the President’s own choices constituted the majority of the
awardees in utter disregard of the choices of the NCCA and the CCP and the arts and culture
community which were arrived at after a long and rigorous process of screening and
deliberation. Moreover, the name of Dr. Santos as National Artist for Music was deleted from
the final list submitted by the NCCA and the CCP Boards without clearly indicating the basis
thereof. For petitioners, the President’s discretion to name National Artists cannot be
exercised to defeat the recommendations made by the CCP and NCCA Boards after a long
and rigorous screening process and with the benefit of expertise and experience. The
addition of four names to the final list submitted by the Boards of the CCP and the NCCA and
the deletion of one name from the said list constituted a substitution of judgment by the
President and a unilateral reconsideration without clear justification of the decision of the
First, Second and Final Deliberation Panels composed of experts.34
Petitioners further argue that the choice of respondent GuidoteAlvarez was illegal and
unethical because, as the then Executive Director of the NCCA and presidential adviser on
culture and arts, she was disqualified from even being nominated.35 Moreover, such action on
the part of the former President constituted grave abuse of discretion as it gave preferential
treatment to respondent Guidote-Alvarez by naming the latter a National Artist despite her not
having been nominated and, thus, not subjected to the screening process provided by the
rules for selection to the Order of National Artists. Her inclusion in the list by the President
represented a clear and manifest favor given by the President in that she was exempted from
the process that all other artists have to undergo. According to petitioners, it may be said that
the President used a different procedure to qualify respondent Guidote-Alvarez. This was
clearly grave abuse of discretion for being manifest and undue bias violative of the equal
protection clause.36
Respondent Caparas refutes the contention of the petitioning National Artists and insists that
there could be no prejudice to the latter. They remain to be National Artists and continue to
receive the emoluments, benefits and other privileges pertaining to them by virtue of that
honor. On the other hand, all the other petitioners failed to show any material and personal
injury or harm caused to them by the conferment of the Order of National Artists on
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The rule on standing may not
be relaxed in favor of the petitioners as no question of constitutionality has been raised and
no issue of transcendental importance is involved.37
Respondent Caparas further argues that the remedies of prohibition and injunction are
improper as the act sought to be enjoined – the declaration of respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno as National Artists – had already been consummated. In
particular, respondent Caparas was already proclaimed National Artist through Proclamation
No. 1827 issued on July 6, 2009.38
On the merits, respondent Caparas contends that no grave abuse of discretion attended his
proclamation as National Artist. The former President considered the respective
recommendations of the NCCA and the CCP Boards and of the Committee on Honors in
eventually declaring him (Caparas) as National Artist. The function of the NCCA and the CCP
Boards is simply to advise the President. The award of the Order of National Artists is the
exclusive prerogative of the President who is not bound in any way by the recommendation of
the NCCA and the CCP Boards. The implementing rules and regulations or guidelines of the
NCCA cannot restrict or limit the exclusive power of the President to select the recipients of
the Order of National Artists.39
For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez manifested that
she was waiving her right to file her comment on the petition and submitted herself to the
Court’s discretion and wisdom.
Respondent Mañosa manifested that his creations speak for themselves as his contribution
to Filipino cultural heritage and his worthiness to receive the award. Nonetheless, he
expressed his conviction that the Order of National Artists is not a right but a privilege that he
would willingly relinquish should he be found not worthy of it.41
Respondent Moreno did not file any pleading despite being given several opportunities to do
so. Hence, the Court dispensed with his pleadings.42
In a Resolution dated July 12, 2011, this Court gave due course to the petition and required
the parties to file their respective memoranda.43 Respondent Caparas filed his memorandum
on September 8, 2011,44 the CCP filed its memorandum on September 19,
2011,45 respondent Mañosa on September 20, 2011,46 and the Office of the Solicitor General
filed a manifestation stating that it is adopting its comment as its memorandum on September
21, 2011.47 Respondent Moreno failed to file a Memorandum, hence, the Court resolved to
dispense with the same.48Petitioners filed their Memorandum on May 14, 2012.49
On the other hand, the original position of the Office of the Solicitor General (OSG) was
similar to that of respondent Caparas.50 In a subsequent manifestation,51 however, the OSG
stated that the current Board of Commissioners of the NCCA agree with the petitioners that
the President cannot honor as a National Artist one who was not recommended by the joint
Boards of the NCCA and the CCP. The implementing rules and regulations of Executive
Order No. 236, s. 2003, recognized the binding character of the recommendation of the
NCCA and the CCP Boards and limited the authority of the Committee on Honors to the
determination that (1) there has been no grave abuse of discretion on the part of the NCCA
and the CCP Boards in making the nomination, and (2) the nominee is in good standing.
Where a nomination meets the said two criteria, a recommendation to the President to confer
the award shall be made.52
The OSG further argued that, while the President exercises control over the NCCA and the
CCP, the President has the duty to faithfully execute the laws, including the NCCA-CCP
guidelines for selection of National Artists and the implementing rules of Executive Order No.
236, s. 2003. Moreover, the laws recognize the expertise of the NCCA and the CCP in the
arts and tasked them to screen and select the artists to be conferred the Order of National
Artists. Their mandate is clear and exclusive as no other agency possesses such expertise.53
The OSG also assailed the former President’s choice of respondent Guidote-Alvarez for
being contrary to Republic Act No. 7356.54 Section 11 of the said law provides:
Sec. 11. Membership Restrictions. – During his/her term as member of the Commission, a
Commissioner shall not be eligible for any grant, or such other financial aid from the
Commission as an individual: Provided, however, That he/she may compete for grants and
awards on the same level as other artists one (1) year after his/her term shall have expired.
The omission of the word "award" in the first portion of the above provision appears to be
unintentional as shown by the proviso which states that a member may compete for grants
and awards only one year after his or her term shall have expired. As such, respondent
Guidote-Alvarez is restricted and disqualified from being conferred the 2009 Order of National
Artists.55
The Court’s Ruling
Standing of the Petitioners
Standing is the determination of whether a specific person is the proper party to bring a
matter to the court for adjudication.56 The gist of the question of standing is whether a party
alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.57
The parties who assail the constitutionality or legality of a statute or an official act must have
a direct and personal interest. They must show not only that the law or any governmental act
is invalid, but also that they sustained or are in immediate danger of sustaining some direct
injury as a result of its enforcement, and not merely that they suffer thereby in some indefinite
way. They must show that they have been or are about to be denied some right or privilege to
which they are lawfully entitled or that they are about to be subjected to some burdens or
penalties by reason of the statute or act complained of.58
In this case, we find that the petitioning National Artists will be denied some right or privilege
to which they are entitled as members of the Order of National Artists as a result of the
conferment of the award on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. In
particular, they will be denied the privilege of exclusive membership in the Order of National
Artists.
In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the Order of National
Artists is "an exclusive association of honored individuals." To ensure the exclusivity of the
membership in the Order, a rigid nomination and screening process has been established
with different sets of renowned artists and respected art critics invited to sit as the Council of
Experts for the First and Second Deliberation Panels. Moreover, all living National Artists are
given a voice on who should be included in their exclusive club as they automatically become
members of the Final Deliberation Panel that will vote on who should be included in the final
list to be submitted to the President for conferment of the Order of National Artists. To allow
the untrammeled discretion and authority of the President to confer the Order of National
Artists without regard to the stringent screening and rigorous selection process established
by the NCCA and the CCP will diminish, if not negate, the exclusive nature of the said Order.
It will unduly subject the selection and conferment of the Order of National Artists to politics
rather than to principles and procedures. It will subvert the transparent and rigorous process
and allow entry to the exclusive Order of National Artists through a secret backdoor of
lobbying, back channeling and political accommodation.
Among the other petitioners, Prof. Gemino Abad presents a unique valid personal and
substantial interest. Like respondents Caparas, Mañosa and Moreno, he was among the 87
nominees for the 2009 Order of National Artists. Like respondent Moreno, he made it to the
preliminary shortlist. As he did not make it to the second shortlist, he was not considered by
the Final Deliberation Panel, more so by the former President.
It should be recalled too that respondent Guidote-Alvarez was disqualified to be nominated
for being the Executive Director of the NCCA at that time while respondents Mañosa and
Caparas did not make it to the preliminary shortlist and respondent Moreno was not included
in the second shortlist. Yet, the four of them were treated differently and considered favorably
when they were exempted from the rigorous screening process of the NCCA and the CCP
and conferred the Order of National Artists. The Committee on Honors and the former
President effectively treated respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as
a preferred class. The special treatment accorded to respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno fails to pass rational scrutiny.60 No real and substantial distinction
between respondents and petitioner Abad has been shown that would justify deviating from
the laws, guidelines and established procedures, and placing respondents in an exceptional
position. The undue classification was not germane to the purpose of the law. Instead, it
contradicted the law and well-established guidelines, rules and regulations meant to carry the
law into effect. While petitioner Abad cannot claim entitlement to the Order of National
Artists,61 he is entitled to be given an equal opportunity to vie for that honor. In view of the
foregoing, there was a violation of petitioner Abad’s right to equal protection, an interest that
is substantial enough to confer him standing in this case.
As regards the other concerned artists and academics as well as the CAP, their claim of deep
concern for the preservation of the country’s rich cultural and artistic heritage, while laudable,
falls short of the injury in fact requirement of standing. Their assertion constitutes a
generalized grievance shared in a substantially equal measure by all or a large class of
citizens.62 Nor can they take refuge in their status as taxpayers as the case does not involve
any illegal appropriation or taxation. A taxpayer’s suit is proper only when there is an exercise
of the spending or taxing power of the Congress.63
Nonetheless, as a reading of the petition shows that it has advanced an issue which
deserves the attention of this Court in view of its seriousness, novelty and weight as
precedent, it behooves the Court to relax the rules on standing and to resolve the issue
presented before it.64 Moreover, this issue is of paramount interest,65 which further justifies a
liberal stance on standing.
Propriety of the Remedies
The present action is a petition for prohibition, certiorari, injunction, restraining order and all
other legal, just and equitable reliefs.
It has been held that the remedies of prohibition and injunction are preventive and, as such,
cannot be availed of to restrain an act that is already fait accompli. 66 Where the act sought to
be prohibited or enjoined has already been accomplished or consummated, prohibition or
injunction becomes moot.67
Nevertheless, even if the principal issue is already moot, this Court may still resolve its merits
for the future guidance of both bench and bar. Courts will decide a question otherwise moot
and academic if it is "capable of repetition, yet evading review."68
It is an opportune time for the Court to assert its role as republican schoolmaster, 69 a teacher
in a vital national seminar.70 There are times when the controversy is of such character that,
to prevent its recurrence and to assure respect for constitutional limitations, this Court must
pass on the merits of a case.71 This is one such case. More than being a teaching moment,
this is not the first time that the Order of National Artists was conferred in the manner that is
being assailed in this case.72 If not addressed here and now, there is great probability that the
central question involved in this case will haunt us again in the future. Every President may
invoke absolute presidential prerogative and thrust upon us National Artists after his or her
own heart, in total disregard of the advise of the CCP and the NCCA and the voice of the
community of artists, resulting to repeated episodes of indignation and uproar from the artists
and the public.
Furthermore, if not corrected, such an act would give rise to mischief and dangerous
precedent whereby those in the corridors of power could avoid judicial intervention and
review by merely speedily and stealthily completing the commission of an illegality. 73
In any event, the present petition is also for certiorari and there is no procedural bar for the
Court to pass upon the question of whether the proclamations of respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno as National Artists were attended by grave abuse of
presidential discretion.
Limits of the President’s Discretion
The respective powers of the CCP Board of Trustees and of the NCCA Board of
Commissioners with respect to the conferment of the Order of National Artists are clear. They
jointly administer the said award and, upon their recommendation or advice, the President
confers the Order of National Artists.
To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or
counsel."74 To "advise" is "to give an opinion or counsel, or recommend a plan or course of
action; also to give notice. To encourage, inform or acquaint."75 "Advise" imports that it is
discretionary or optional with the person addressed whether he will act on such advice or
not.76 This has been clearly explained in Cojuangco, Jr. v. Atty. Palma77:
The "power to recommend" includes the power to give "advice, exhortation or indorsement,
which is essentially persuasive in character, not binding upon the party to whom it is made."
(Emphasis supplied.)
Thus, in the matter of the conferment of the Order of National Artists, the President may or
may not adopt the recommendation or advice of the NCCA and the CCP Boards. In other
words, the advice of the NCCA and the CCP is subject to the President’s discretion.
Nevertheless, the President’s discretion on the matter is not totally unfettered, nor the role of
the NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is reined
in to keep it from straying. In its classic formulation, "discretion is not unconfined and vagrant"
but "canalized within banks that keep it from overflowing."78
The President’s power must be exercised in accordance with existing laws. Section 17,
Article VII of the Constitution prescribes faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied.)
The President’s discretion in the conferment of the Order of National Artists should be
exercised in accordance with the duty to faithfully execute the relevant laws. The faithful
execution clause is best construed as an obligation imposed on the President, not a separate
grant of power.79 It simply underscores the rule of law and, corollarily, the cardinal principle
that the President is not above the laws but is obliged to obey and execute them. 80 This is
precisely why the law provides that "administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the Constitution."81
In this connection, the powers granted to the NCCA and the CCP Boards in connection with
the conferment of the Order of National Artists by executive issuances were institutionalized
by two laws, namely, Presidential Decree No. 208 dated June 7, 1973 and Republic Act No.
7356. In particular, Proclamation No. 1144 dated May 15, 1973 constituted the CCP Board as
the National Artists Awards Committee and tasked it to "administer the conferment of the
category of National Artist" upon deserving Filipino artists with the mandate to "draft the rules
to guide its deliberations in the choice of National Artists":
Proclamation No. 1001 dated April 27, 1972, creating the Award and Decoration of National
Artist, is hereby amended by creating a National Artists Awards Committee, hereinafter to
administer the conferment of the category of National Artist upon those deserving thereof.
The Committee, which shall be composed of members of the Board of Trustees of the
Cultural Center of the Philippines, shall organize itself immediately and shall draft the rules to
guide its deliberations in the choice of National Artists, to the end that those who have
created a body of work in the arts and in letters capable of withstanding the test of time will
be so recognized. (Emphases supplied.)
The authority of the CCP Board of Trustees as National Artists Awards Committee was
reiterated in Presidential Decree No. 208 dated June 7, 1973.
The function of the CCP Board of Trustees as National Artists Awards Committee has been
recognized under Republic Act No. 7356:
Sec. 18. The National Cultural Agencies. – The [NCCA] shall coordinate with the national
cultural agencies including but not limited to the Cultural Center of the Philippines, the
Institute of Philippine Languages, the National Historical Institute, the National Library, the
National Museum, the Records Management and Archives Office. However, they shall
continue operating under their respective charters or as provided by law where provisions
therein are not inconsistent with the provisions of this Act. They shall serve as the national
repository and/or showcase, as the case may be, of the best of Philippine culture and arts.
For this purpose, these agencies shall submit periodic reports, including recommendations to
the [NCCA]. (Emphasis supplied.)
On the other hand, the NCCA has been given the following mandate in connection with the
conferment of cultural or arts awards:
Sec. 12. Mandate. – The Commission is hereby mandated to formulate and implement
policies and plans in accordance with the principles stated in Title 1 of this Act.
(a) To encourage the continuing and balanced development of a pluralistic culture by
the people themselves, it shall:
xxxx
(4) extend recognition of artistic achievement through awards, grants and services to
artists and cultural groups which contribute significantly to the Filipino’s cultural
legacy;
xxxx
Sec. 13. Powers and Functions. – To carry out its mandate, the Commission shall
exercise the following powers and functions:
 xxxx
(j) advise the President on matters pertaining to culture and the arts, including the
creation of a special decoration or award, for persons who have significantly
contributed to the development and promotion of Philippine culture and arts;
(k) promulgate rules, regulations and undertake any and all measures as may be
necessary to implement this Act. (Emphases supplied.)
By virtue of their respective statutory mandates in connection with the conferment of the
National Artist Award, the NCCA and the CCP decided to work together and jointly administer
the National Artist Award. They reviewed the guidelines for the nomination, selection and
administration of the National Artist Award, created a National Artist Award Secretariat,
centralized all financial resources and management for the administration of the National
Artist Award, and added another layer to the selection process so that more members of the
arts and culture sector of the Philippines may be involved and participate in the selection of
National Artists.
We have held that an administrative regulation adopted pursuant to law has the force and
effect of law.82 Thus, the rules, guidelines and policies regarding the Order of National Artists
jointly issued by the CCP Board of Trustees and the NCCA pursuant to their respective
statutory mandates have the force and effect of law. Until set aside, they are binding upon
executive and administrative agencies,83 including the President himself/herself as chief
executor of laws. In this connection, Section 2.5(A) of the Implementing Rules and
Regulations84 of Executive Order No. 236, s. 2003 provides:
2.5: General Guidelines for Awards Committees
A. National Orders of Cultural and Scientific Merit
The existing modalities of the NCCA for selecting recipients for the Order of National Artists,
and the Gawad sa Manlilikha ng Bayan, and of the NAST for selecting recipients of the Order
of National Scientists, shall remain in force. (Emphases supplied.)
Section 2.4(A) of the same implementing rules further states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors and the various
awards committees in the various units of the government service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is composed of the
following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to the Committee on
Honors via the Chancellery of Philippine Orders and State Decorations. The Chancellery
shall process nominations for the consideration of the Committee on Honors. The Committee
on Honors shall screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a screening committee to ensure
that nominations received from the various awards committees meet two tests: that there has
not been an abuse of discretion in making the nomination, and that the nominee is in good
standing. Should a nomination meet these criteria, a recommendation to the President for
conferment shall be made.
The President of the Philippines takes the recommendations of the Committee on Honors in
the highest consideration when making the final decision on the conferment of awards.
(Emphasis supplied.)
Pursuant to the above provision of the implementing rules of Executive Order No. 236, s.
2003, the authority of the Committee on Honors is limited to determining whether the
nominations submitted by a particular awards committee, in this case, the joint NCCA and
CCP Boards, have been tainted by abuse of discretion, and whether the nominees are in
good standing. Should the nominations meet these two criteria, the Committee on Honors
shall make a recommendation to the President for conferment of the Order of National Artists.
In view of the various stages of deliberation in the selection process and as a consequence of
his/her duty to faithfully enforce the relevant laws, the discretion of the President in the matter
of the Order of National Artists is confined to the names submitted to him/her by the NCCA
and the CCP Boards. This means that the President could not have considered conferment of
the Order of National Artists on any person not considered and recommended by the NCCA
and the CCP Boards. That is the proper import of the provision of Executive Order No. 435, s.
2005, that the NCCA and the CCP "shall advise the President on the conferment of the Order
of National Artists." Applying this to the instant case, the former President could not have
properly considered respondents Guidote-Alvarez, Caparas, Mañosa and Moreno, as their
names were not recommended by the NCCA and the CCP Boards. Otherwise, not only will
the stringent selection and meticulous screening process be rendered futile, the respective
mandates of the NCCA and the CCP Board of Trustees under relevant laws to administer the
conferment of Order of National Artists, draft the rules and regulations to guide its
deliberations, formulate and implement policies and plans, and undertake any and all
necessary measures in that regard will also become meaningless.
Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director of
the NCCA at that time, the Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff
are automatically disqualified from being nominated.85
Respondent Guidote-Alvarez could not have even been nominated, hence, she was not
qualified to be considered and conferred the Order of National Artists at that time. The
President’s discretion on the matter does not extend to removing a legal impediment or
overriding a legal restriction.
From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to
the conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz
was not binding on the former President but only discretionary or optional for her whether or
not to act on such advice or recommendation. Also, by virtue of the power of control, the
President had the authority to alter or modify or nullify or set aside such recommendation or
advice. It was well within the President’s power and discretion to proclaim all, or some or
even none of the recommendees of the CCP and the NCCA Boards, without having to justify
his or her action. Thus, the exclusion of Santos did not constitute grave abuse of discretion
on the part of the former President.
Order of National Artists on said respondents was therefore made with grave abuse of
discretion and should be set aside.
While the Court invalidates today the proclamation of respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno as National Artists, such action should not be taken as a
pronouncement on whether they are worthy to be conferred that honor. Only the President,
upon the advise of the NCCA and the CCP Boards, may determine that. The Court simply
declares that, as the former President committed grave abuse of discretion in issuing
Proclamation Nos. 1826 to 1829 dated July 6, 2009, the said proclamations are invalid.
However, nothing in this Decision should be read as a disqualification on the part of
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno to be considered for the honor
of National Artist in the future, subject to compliance with the laws, rules and regulations
governing said award.
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation Nos. 1826 to 1829
dated July 6, 2009 proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose
Caparas, Francisco Mañosa, and Jose Moreno, respectively, as National Artists are declared
INVALID and
SET ASIDE for having been issued with grave abuse of discretion.
SO ORDERED.

The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas,

Mañosa and Moreno was an entirely different matter.

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the
law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill
will or personal bias.86

There was a violation of the equal protection clause of the Constitution87 when the former
President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno.1âwphi1 The former President’s constitutional duty to faithfully execute the laws and
observe the rules, guidelines and policies of the NCCA and the CCP as to the selection of the
nominees for conferment of the Order of National Artists proscribed her from having a free
and uninhibited hand in the conferment of the said award. The manifest disregard of the
rules, guidelines and processes of the NCCA and the CCP was an arbitrary act that unduly
favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The conferment of the
 Republic of the Philippines WHEREAS, another of the five reform packages of the Arroyo administration is Anti-
SUPREME COURT Corruption and Good Government;
Manila
WHEREAS, one of the Good Government reforms of the Arroyo administration is rationalizing
EN BANC the bureaucracy by consolidating related functions into one department;

G.R. No. 166052 August 29, 2007 WHEREAS, under law and jurisprudence, the President of the Philippines has broad powers
to reorganize the offices under her supervision and control;
ANAK MINDANAO PARTY-LIST GROUP, as represented by Rep. Mujiv S. Hataman, and
MAMALO DESCENDANTS ORGANIZATION, INC., as represented by its Chairman NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President
Romy Pardi, Petitioners, of the Republic of the Philippines, do hereby order:
vs.
THE EXECUTIVE SECRETARY, THE HON. EDUARDO R. ERMITA, and THE SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department
SECRETARY OF AGRARIAN/LAND REFORM, THE HON. RENE C. VILLA, Respondents. of Land Reform. It shall be responsible for all land reform in the country, including agrarian
reform, urban land reform, and ancestral domain reform.
DECISION
SECTION 2. The PCUP is hereby placed under the supervision and control of the
CARPIO MORALES, J.: Department of Land Reform. The Chairman of the PCUP shall be ex-officio Undersecretary of
the Department of Land Reform for Urban Land Reform.
Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization,
Inc. (MDOI) assail the constitutionality of Executive Order (E.O.) Nos. 364 and 379, both SECTION 3. The NCIP is hereby placed under the supervision and control of the Department
issued in 2004, via the present Petition for Certiorari and Prohibition with prayer for injunctive of Land Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the
relief. Department of Land Reform for Ancestral Domain Reform.

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, SECTION 4. The PCUP and the NCIP shall have access to the services provided by the
reads: Department’s Finance, Management and Administrative Office; Policy, Planning and Legal
Affairs Office, Field Operations and Support Services Office, and all other offices of the
EXECUTIVE ORDER NO. 364 Department of Land Reform.

TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE SECTION 5. All previous issuances that conflict with this Executive Order are hereby
DEPARTMENT OF LAND REFORM repealed or modified accordingly.

WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring
and Basic [N]eeds; supplied)

WHEREAS, one of the five anti-poverty measures for social justice is asset reform; E.O. No. 379, which amended E.O. No. 364 a month later or on October 26, 2004, reads:

WHEREAS, asset reforms covers [sic] agrarian reform, urban land reform, and ancestral
domain reform;
WHEREAS, urban land reform is a concern of the Presidential Commission [for] the Urban
Poor (PCUP) and ancestral domain reform is a concern of the National Commission on
Indigenous Peoples (NCIP);
EXECUTIVE ORDER NO. 379
AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING THE
DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM
WHEREAS, Republic Act No. 8371 created the National Commission on Indigenous Peoples;
WHEREAS, pursuant to the Administrative Code of 1987, the President has the continuing
authority to reorganize the administrative structure of the National Government.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do
hereby order:
Section 1. Amending Section 3 of Executive Order No. 364. Section 3 of Executive Order No.
364, dated September 27, 2004 shall now read as follows:
"Section 3. The National Commission on Indigenous Peoples (NCIP) shall be an attached
agency of the Department of Land Reform."
Section 2. Compensation. The Chairperson shall suffer no diminution in rank and salary.
Section 3. Repealing Clause. All executive issuances, rules and regulations or parts thereof
which are inconsistent with this Executive Order are hereby revoked, amended or modified
accordingly.
Section 4. Effectivity. This Executive Order shall take effect immediately. (Emphasis and
underscoring in the original)
Petitioners contend that the two presidential issuances are unconstitutional for violating:
- THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS AND OF
THE RULE OF LAW[;]
- THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN REFORM,
URBAN LAND REFORM, INDIGENOUS PEOPLES’ RIGHTS AND ANCESTRAL
DOMAIN[; AND]
- THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS
TO EFFECTIVE AND REASONABLE PARTICIPATION IN DECISION-MAKING,
INCLUDING THROUGH ADEQUATE CONSULTATION[.]1
By Resolution of December 6, 2005, this Court gave due course to the Petition and required
the submission of memoranda, with which petitioners and respondents complied on March
24, 2006 and April 11, 2006, respectively.
The issue on the transformation of the Department of Agrarian Reform (DAR) into the
Department of Land Reform (DLR) became moot and academic, however, the department
having reverted to its former name by virtue of E.O. No. 4562 which was issued on August 23,
2005.
The Court is thus left with the sole issue of the legality of placing the Presidential
Commission3 for the Urban Poor (PCUP) under the supervision and control of the DAR, and
the National Commission on Indigenous Peoples (NCIP) under the DAR as an attached
agency.
Before inquiring into the validity of the reorganization, petitioners’ locus standi or legal
standing, inter alia,4 becomes a preliminary question.
The Office of the Solicitor General (OSG), on behalf of respondents, concedes that
AMIN5 has the requisite legal standing to file this suit as member 6 of Congress.
Petitioners find it impermissible for the Executive to intrude into the domain of the Legislature.
They posit that an act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a member of
Congress.7 They add that to the extent that the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to participate in the exercise of
the powers of that institution.8
Indeed, a member of the House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office.9
The OSG questions, however, the standing of MDOI, a registered people’s organization
of Teduray and Lambangiantribesfolk of (North) Upi and South Upi in the province of
Maguindanao.
As co-petitioner, MDOI alleges that it is concerned with the negative impact of NCIP’s
becoming an attached agency of the DAR on the processing of ancestral domain claims. It
fears that transferring the NCIP to the DAR would affect the processing of ancestral domain
claims filed by its members.
Locus standi or legal standing has been defined as a personal and substantial interest in a
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.10
It has been held that a party who assails the constitutionality of a statute must have a direct
and personal interest. It must show not only that the law or any governmental act is invalid,
but also that it sustained or is in immediate danger of sustaining some direct injury as a result
of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show
that it has been or is about to be denied some right or privilege to which it is lawfully entitled
or that it is about to be subjected to some burdens or penalties by reason of the statute or act
complained of.11
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it
has personally suffered some actual or threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3)
the injury is likely to be redressed by a favorable action.12
An examination of MDOI’s nebulous claims of "negative impact" and "probable
setbacks"13 shows that they are too abstract to be considered judicially cognizable. And the
line of causation it proffers between the challenged action and alleged injury is too
attenuated.
Vague propositions that the implementation of the assailed orders will work injustice and
violate the rights of its members cannot clothe MDOI with the requisite standing. Neither
would its status as a "people’s organization" vest it with the legal standing to assail the
validity of the executive orders.14
La Bugal-B’laan Tribal Association, Inc. v. Ramos,15 which MDOI cites in support of its claim
to legal standing, is inapplicable as it is not similarly situated with the therein petitioners who
alleged personal and substantial injury resulting from the mining activities permitted by the
assailed statute. And so is Cruz v. Secretary of Environment and Natural Resources,16 for the
indigenous peoples’ leaders and organizations were not the petitioners therein, who
necessarily had to satisfy the locus standi requirement, but were intervenors who sought and
were allowed to be impleaded, not to assail but to defend the constitutionality of the statute.
Moreover, MDOI raises no issue of transcendental importance to justify a relaxation of the
rule on legal standing. To be accorded standing on the ground of transcendental
importance, Senate of the Philippines v. Ermita17 requires that the following elements must be
established: (1) the public character of the funds or other assets involved in the case, (2) the
presence of a clear case of disregard of a constitutional or statutory prohibition by the public
respondent agency or instrumentality of government, and (3) the lack of any other party with
a more direct and specific interest in raising the questions being raised. The presence of
these elements MDOI failed to establish, much less allege.
Francisco, Jr. v. Fernando18 more specifically declares that the transcendental importance of
the issues raised must relate to the merits of the petition.
This Court, not being a venue for the ventilation of generalized grievances, must thus deny
adjudication of the matters raised by MDOI.
Now, on AMIN’s position. AMIN charges the Executive Department with transgression of the
principle of separation of powers.
Under the principle of separation of powers, Congress, the President, and the Judiciary may
not encroach on fields allocated to each of them. The legislature is generally limited to the
enactment of laws, the executive to the enforcement of laws, and the judiciary to their
interpretation and application to cases and controversies. The principle presupposes mutual
respect by and between the executive, legislative and judicial departments of the government
and calls for them to be left alone to discharge their duties as they see fit.19
AMIN contends that since the DAR, PCUP and NCIP were created by statutes,20 they can
only be transformed, merged or attached by statutes, not by mere executive orders.
While AMIN concedes that the executive power is vested in the President21 who, as Chief
Executive, holds the power of control of all the executive departments, bureaus, and
offices,22 it posits that this broad power of control including the power to reorganize is
qualified and limited, for it cannot be exercised in a manner contrary to law, citing the
constitutional duty23 of the President to ensure that the laws, including those creating the
agencies, be faithfully executed.
AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension
of the President, and the creation of the NCIP as an "independent agency under the Office of
the President."24 It thus argues that since the legislature had seen fit to create these agencies
at separate times and with distinct mandates, the President should respect that legislative
disposition.
In fine, AMIN contends that any reorganization of these administrative agencies should be
the subject of a statute.
AMIN’s position fails to impress.
The Constitution confers, by express provision, the power of control over executive
departments, bureaus and offices in the President alone. And it lays down a limitation on the
legislative power.
The line that delineates the Legislative and Executive power is not indistinct. Legislative
power is "the authority, under the Constitution, to make laws, and to alter and repeal them."
The Constitution, as the will of the people in their original, sovereign and unlimited capacity,
has vested this power in the Congress of the Philippines. The grant of legislative power to
Congress is broad, general and comprehensive. The legislative body possesses plenary
power for all purposes of civil government. Any power, deemed to be legislative by usage and
tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general concern or
common interest.
While Congress is vested with the power to enact laws, the President executes the laws. The
executive power is vested in the President. It is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical operation and enforcing
their due observance.
As head of the Executive Department, the President is the Chief Executive. He represents
the government as a whole and sees to it that all laws are enforced by the officials and
employees of his department. He has control over the executive department, bureaus and
offices. This means that he has the authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of its officials. Corollary to the
power of control, the President also has the duty of supervising and enforcement of laws for
the maintenance of general peace and public order. Thus, he is granted administrative power
over bureaus and offices under his control to enable him to discharge his duties
effectively.25 (Italics omitted, underscoring supplied)
The Constitution’s express grant of the power of control in the President justifies an executive
action to carry out reorganization measures under a broad authority of law.26
In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all
existing laws and jurisprudence on the subject.27 It is thus reasonable to conclude that in
passing a statute which places an agency under the Office of the President, it was in
accordance with existing laws and jurisprudence on the President’s power to reorganize.
In establishing an executive department, bureau or office, the legislature necessarily ordains
an executive agency’s position in the scheme of administrative structure. Such determination
is primary,28 but subject to the President’s continuing authority to reorganize the
administrative structure. As far as bureaus, agencies or offices in the executive department
are concerned, the power of control may justify the President to deactivate the functions of a
particular office. Or a law may expressly grant the President the broad authority to carry out
reorganization measures.29 The Administrative Code of 1987 is one such law:30
SEC. 30. Functions of Agencies under the Office of the President.– Agencies under the
Office of the President shall continue to operate and function in accordance with their
respective charters or laws creating them, except as otherwise provided in this
Code or by law.
SEC. 31. Continuing Authority of the President to Reorganize his Office.– The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may take any of
the following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the Presidential Special Assistants/Advisers System
and the Common Staff Support System, by abolishing, consolidating, or merging
units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department or
Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or
agency as well as transfer agencies to the Office of the President from other
departments or agencies.31 (Italics in the original; emphasis and underscoring
supplied)
In carrying out the laws into practical operation, the President is best equipped to assess
whether an executive agency ought to continue operating in accordance with its charter or
the law creating it. This is not to say that the legislature is incapable of making a similar
assessment and appropriate action within its plenary power. The Administrative Code of 1987
merely underscores the need to provide the President with suitable solutions to situations on
hand to meet the exigencies of the service that may call for the exercise of the power of
control.
x x x The law grants the President this power in recognition of the recurring need of every
President to reorganize his office "to achieve simplicity, economy and efficiency." The Office
of the President is the nerve center of the Executive Branch. To remain effective and efficient,
the Office of the President must be capable of being shaped and reshaped by the President
in the manner he deems fit to carry out his directives and policies. After all, the Office of the
President is the command post of the President. This is the rationale behind the President’s
continuing authority to reorganize the administrative structure of the Office of the President. 32
The Office of the President consists of the Office of the President proper and the agencies
under it.33 It is not disputed that PCUP and NCIP were formed as agencies under the Office
of the President.34 The "Agencies under the Office of the President" refer to those offices
placed under the chairmanship of the President, those under the supervision and control of
the President, those under the administrative supervision of the Office of the President, those
attached to the Office for policy and program coordination, and those that are not placed by
law or order creating them under any special department.35
As thus provided by law, the President may transfer any agency under the Office of the
President to any other department or agency, subject to the policy in the Executive Office and
in order to achieve simplicity, economy and efficiency. Gauged against these guidelines, 36 the
challenged executive orders may not be said to have been issued with grave abuse of
discretion or in violation of the rule of law.
The references in E.O. 364 to asset reform as an anti-poverty measure for social justice and
to rationalization of the bureaucracy in furtherance of good government37 encapsulate a
portion of the existing "policy in the Executive Office." As averred by the OSG, the President
saw it fit to streamline the agencies so as not to hinder the delivery of crucial social reforms.38
The consolidation of functions in E.O. 364 aims to attain the objectives of "simplicity,
economy and efficiency" as gathered from the provision granting PCUP and NCIP access to
the range of services provided by the DAR’s technical offices and support systems. 39
The characterization of the NCIP as an independent agency under the Office of the President
does not remove said body from the President’s control and supervision with respect to its
performance of administrative functions. So it has been opined:
That Congress did not intend to place the NCIP under the control of the President in all
instances is evident in the IPRA itself, which provides that the decisions of the NCIP in the
exercise of its quasi-judicial functions shall be appealable to the Court of Appeals, like those
of the National Labor Relations Commission (NLRC) and the Securities and Exchange
Commission (SEC). Nevertheless, the NCIP, although independent to a certain degree, was
placed by Congress "under the office of the President" and, as such, is still subject to the
President’s power of control and supervision granted under Section 17, Article VII of the
Constitution with respect to its performance of administrative functions[.]40 (Underscoring
supplied)
In transferring the NCIP to the DAR as an attached agency, the President effectively
tempered the exercise of presidential authority and considerably recognized that degree of
independence.
The Administrative Code of 1987 categorizes administrative relationships into (1) supervision
and control, (2) administrative supervision, and (3) attachment. 41 With respect to the third
category, it has been held that an attached agency has a larger measure of independence
from the Department to which it is attached than one which is under departmental supervision
and control or administrative supervision. This is borne out by the "lateral relationship"
between the Department and the attached agency. The attachment is merely for "policy and
program coordination."42 Indeed, the essential autonomous character of a board is not
negated by its attachment to a commission.43
AMIN argues, however, that there is an anachronism of sorts because there can be no policy
and program coordination between conceptually different areas of reform. It claims that the
new framework subsuming agrarian reform, urban land reform and ancestral domain reform
is fundamentally incoherent in view of the widely different contexts.44 And it posits that it is a
substantive transformation or reorientation that runs contrary to the constitutional scheme
and policies.
AMIN goes on to proffer the concept of "ordering the law"45 which, so it alleges, can be said
of the Constitution’s distinct treatment of these three areas, as reflected in separate
provisions in different parts of the Constitution.46 It argues that the Constitution did not intend
an over-arching concept of agrarian reform to encompass the two other areas, and that how
the law is ordered in a certain way should not be undermined by mere executive orders in the
guise of administrative efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social justice is not something
implausible or unlikely.47Their interlocking nature cuts across labels and works against a rigid
pigeonholing of executive tasks among the members of the President’s official family.
Notably, the Constitution inhibited from identifying and compartmentalizing the composition of
the Cabinet. In vesting executive power in one person rather than in a plural executive, the
evident intention was to invest the power holder with energy. 48
AMIN takes premium on the severed treatment of these reform areas in marked provisions of
the Constitution. It is a precept, however, that inferences drawn from title, chapter or section
headings are entitled to very little weight.49And so must reliance on sub-headings,50 or the
lack thereof, to support a strained deduction be given the weight of helium.
Secondary aids may be consulted to remove, not to create doubt.51 AMIN’s thesis unsettles,
more than settles the order of things in construing the Constitution. Its interpretation fails to
clearly establish that the so-called "ordering" or arrangement of provisions in the Constitution
was consciously adopted to imply a signification in terms of government hierarchy from where
a constitutional mandate can per se be derived or asserted. It fails to demonstrate that the
"ordering" or layout was not simply a matter of style in constitutional drafting but one of
intention in government structuring. With its inherent ambiguity, the proposed interpretation
cannot be made a basis for declaring a law or governmental act unconstitutional.
A law has in its favor the presumption of constitutionality. For it to be nullified, it must be
shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity
must be clear and beyond reasonable doubt.52Any reasonable doubt should, following the
universal rule of legal hermeneutics, be resolved in favor of the constitutionality of a law. 53
Ople v. Torres54 on which AMIN relies is unavailing. In that case, an administrative order
involved a system of identification that required a "delicate adjustment of various contending
state policies" properly lodged in the legislative arena. It was declared unconstitutional for
dealing with a subject that should be covered by law and for violating the right to privacy.
In the present case, AMIN glaringly failed to show how the reorganization by executive fiat
would hamper the exercise of citizen’s rights and privileges. It rested on the ambiguous
conclusion that the reorganization jeopardizes economic, social and cultural rights. It
intimated, without expounding, that the agendum behind the issuances is to weaken the
indigenous peoples’ rights in favor of the mining industry. And it raised concerns about the
possible retrogression in DAR’s performance as the added workload may impede the
implementation of the comprehensive agrarian reform program.lavvphil
AMIN has not shown, however, that by placing the NCIP as an attached agency of the DAR,
the President altered the nature and dynamics of the jurisdiction and adjudicatory functions of
the NCIP concerning all claims and disputes involving rights of indigenous cultural
communities and
indigenous peoples. Nor has it been shown, nay alleged, that the reorganization was made in
bad faith.55
As for the other arguments raised by AMIN which pertain to the wisdom or soundness of the
executive decision, the Court finds it unnecessary to pass upon them. The raging debate on
the most fitting framework in the delivery of social services is endless in the political arena. It
is not the business of this Court to join in the fray. Courts have no judicial power to review
cases involving political questions and, as a rule, will desist from taking cognizance of
speculative or hypothetical cases, advisory opinions and cases that have become moot. 56

Finally, a word on the last ground proffered for declaring the unconstitutionality of the
assailed issuances ─ that they violate Section 16, Article XIII of the Constitution 57 on the
people’s right to participate in decision-making through adequate consultation mechanisms.

The framers of the Constitution recognized that the consultation mechanisms were already
operating without the State’s action by law, such that the role of the State would be mere
facilitation, not necessarily creation of these consultation mechanisms. The State provides
the support, but eventually it is the people, properly organized in their associations, who can
assert the right and pursue the objective. Penalty for failure on the part of the government to
consult could only be reflected in the ballot box and would not nullify government action. 58

WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and 379 issued on
September 27, 2004 and October 26, 2004, respectively, are declared not unconstitutional.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 160093 July 31, 2007
MALARIA EMPLOYEES AND WORKERS ASSOCIATION OF THE PHILIPPINES, INC.
(MEWAP), represented by its National President, DR. RAMON A. SULLA, and MEWAP
DOH Central Office Chapter President, DR. GRACELA FIDELA MINA-RAMOS, and
PRISCILLA CARILLO, and HERMINIO JAVIER, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO ROMULO, (substituting the
former Executive Secretary Renato de Villa), THE HONORABLE SECRETARY OF
HEALTH MANUEL DAYRIT and THE HONORABLE SECRETARY OF BUDGET AND
MANAGEMENT EMILIA T. BONCODIN, respondents.
DECISION
PUNO, CJ.:
At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals in CA-
G.R. SP No. 65475 dated September 12, 2003 which upheld the validity of Executive Order
(E.O.) No. 102,1 the law Redirecting the Functions and Operations of the Department of
Health. Then President Joseph E. Estrada issued E.O. No. 102 on May 24, 1999 pursuant to
Section 20, Chapter 7, Title I, Book III of E.O. No. 292, otherwise known as the Administrative
Code of 1987, and Sections 78 and 80 of Republic Act (R.A.) No. 8522, also known as the
General Appropriations Act (GAA) of 1998. E.O. No. 102 provided for structural changes and
redirected the functions and operations of the Department of Health.
On October 19, 1999, the President issued E.O. No. 165 "Directing the Formulation of an
Institutional Strengthening and Streamlining Program for the Executive Branch" which
created the Presidential Committee on Executive Governance (PCEG) composed of the
Executive Secretary as chair and the Secretary of the Department of Budget and
Management (DBM) as co-chair.
The DBM, on July 8, 2000, issued the Notice of Organization, Staffing and Compensation
Action (NOSCA). On July 17, 2000, the PCEG likewise issued Memorandum Circular (M.C.)
No. 62, entitled "Implementing Executive Order No. 102, Series of 1999 Redirecting the
Functions and Operations of the Department of Health."2 M.C. No. 62 directed the
rationalization and streamlining of the said Department.
On July 24, 2000, the Secretary of Health issued Department Memorandum No. 136, Series
of 2000, ordering the Undersecretary, Assistant Secretaries, Bureau or Service Directors and
Program Managers of the Department of Health to direct all employees under their respective
offices to accomplish and submit the Personal Information Sheet due to the approval of the
Department of Health – Rationalization and Streamlining Plan.
On July 28, 2000, the Secretary of Health again issued Department Circular No. 221, Series
of 2000, stating that the Department will start implementing the Rationalization and
Streamlining Plan by a process of selection, placement or matching of personnel to the
approved organizational chart and the list of the approved plantilla items. 3 The Secretary also
issued Administrative Order (A.O.) No. 94, Series of 2000, which set the implementing
guidelines for the restructuring process on personnel selection and placement, retirement
and/or voluntary resignation. A.O. No. 94 outlined the general guidelines for the selection and
placement of employees adopting the procedures and standards set forth in R.A. No.
66564 or the "Rules on Governmental Reorganization," Civil Service Rules and Regulations,
Sections 76 to 78 of the GAA for the Year 2000, and Section 42 of E.O. No. 292.
On August 29, 2000, the Secretary of Health issued Department Memorandum No. 157,
Series of 2000, viz.:
Pursuant to the Notice of Organization, Staffing and Compensation Action (NOSCA)
approved by the DBM on 8 July 2000 and Memorandum Circular No. 62 issued by
the Presidential Committee on Effective Governance (PCEG) on 17 July 2000,
Implementing E.O. 102 dated 24 May 1999, the following approved Placement List of
DOH Personnel is hereby disseminated for your information and guidance.
All personnel are hereby directed to report to their new assignments on or before 2
October 2000 pending processing of new appointments, required clearances and
other pertinent documents.
All Heads of Office/Unit in the Department of Health are hereby directed to facilitate
the implementation of E.O. 102, to include[,] among others, the transfer or movement
of personnel, properties, records and documents to appropriate office/unit and device
other necessary means to minimize disruption of office functions and delivery of
health services.
Appeals, oversights, issues and concerns of personnel related to this Placement List
shall be made in writing using the Appeals Form (available at the Administrative
Service) addressed to the Appeals Committee chaired by Dr. Gerardo Bayugo. All
Appeals Forms shall be submitted to the Re-Engineering Secretariat xxx not later
than 18 September 2000. 5
Petitioner Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) is a
union of affected employees in the Malaria Control Service of the Department of Health.
MEWAP filed a complaint, docketed as Civil Case No. 00-98793, with the Regional Trial
Court of Manila seeking to nullify Department Memorandum No. 157, the NOSCA and the
Placement List of Department of Health Personnel and other issuances implementing E.O.
No. 102.
On May 2, 2001, while the civil case was pending at the Regional Trial Court of Manila,
Branch 22, petitioners filed with this Court a petition for certiorari under Rule 65 of the Rules
of Court. Petitioners sought to nullify E.O. No. 102 for being issued with grave abuse of
discretion amounting to lack or excess of jurisdiction as it allegedly violates certain provisions
of E.O. No. 292 and R.A. No. 8522. The petition was referred to the Court of Appeals which
dismissed the same in its assailed Decision. Hence, this appeal where petitioners ask for a
re-examination of the pertinent pronouncements of this Court that uphold the authority of the
President to reorganize a department, bureau or office in the executive department.
Petitioners raise the following issues, viz.:
1. Whether Sections 78 and 80 of the General Provision of Republic Act No. 8522,
otherwise known as the General Appropriation[s] Act of 1998[,] empower former
President Joseph E. Estrada to reorganize structurally and functionally the
Department of Health.
2. Whether Section 20, Chapter I, title i, Book III of the Administrative Code of 1987
provides legal basis in reorganizing the Department of Health.
(A) Whether Presidential Decree No. 1416, as amended by Presidential Decree No.
1772, has been repealed.
3. Whether the President has authority under Section 17, Article VIII of the
Constitution to effect a reorganization of a department under the executive branch.
4. Whether there has been abuse of discretion amounting to lack or excess of
jurisdiction on the part of former President Joseph E. Estrada in issuing Executive
Order No. 102, Redirecting the functions and operations of the Department of Health.
5. Whether Executive Order No. 102 is null and void. 6
We deny the petition.
The President has the authority to carry out a reorganization of the Department of Health
under the Constitution and statutory laws. This authority is an adjunct of his power of control
under Article VII, Sections 1 and 17 of the 1987 Constitution, viz.:
Section 1. The executive power shall be vested in the President of the Philippines.
Section 17. The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.
In Canonizado v. Aguirre,7 we held that reorganization "involves the reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." It alters the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them.8 While the power to
abolish an office is generally lodged with the legislature, the authority of the President to
reorganize the executive branch, which may include such abolition, is permissible under our
present laws, viz.:
The general rule has always been that the power to abolish a public office is lodged
with the legislature. This proceeds from the legal precept that the power to create
includes the power to destroy. A public office is either created by the Constitution, by
statute, or by authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that brought it into
existence.
The exception, however, is that as far as bureaus, agencies or offices in the
executive department are concerned, the President’s power of control may justify him
to inactivate the functions of a particular office, or certain laws may grant him the
broad authority to carry out reorganization measures.9
The President’s power to reorganize the executive branch is also an exercise of his residual
powers under Section 20, Title I, Book III of E.O. No. 292 which grants the President broad
organization powers to implement reorganization measures, viz.:
SEC. 20. Residual Powers. – Unless Congress provides otherwise, the President
shall exercise such other powers and functions vested in the President which
are provided for under the laws and which are not specifically enumerated above,
or which are not delegated by the President in accordance with law. 10
We explained the nature of the President’s residual powers under this section in the case
of Larin v. Executive Secretary, 11 viz.:
This provision speaks of such other powers vested in the President under the law.
What law then gives him the power to reorganize? It is Presidential Decree No.
1772 which amended Presidential Decree No. 1416. These decrees expressly
grant the President of the Philippines the continuing authority to reorganize the
national government, which includes the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities and to standardize salaries and materials. The
validity of these two decrees [is] unquestionable. The 1987 Constitution clearly
provides that "all laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed or revoked." So far, there is yet no law
amending or repealing said decrees.12
The pertinent provisions of Presidential Decree No. 1416, as amended by Presidential
Decree No. 1772, clearly support the President’s continuing power to reorganize the
executive branch, viz.:
1. The President of the Philippines shall have continuing authority to reorganize the
National Government. In exercising this authority, the President shall be guided by
generally acceptable principles of good government and responsive national
development, including but not limited to the following guidelines for a more efficient,
effective, economical and development-oriented governmental framework:
xxx
b) Abolish departments, offices, agencies or functions which may not be necessary,
or create those which are necessary, for the efficient conduct of government
functions, services and activities;
c) Transfer functions, appropriations, equipment, properties, records and personnel
from one department, bureau, office, agency or instrumentality to another;
d) Create, classify, combine, split, and abolish positions;
e) Standardize salaries, materials, and equipment;
f) Create, abolish, group, consolidate, merge, or integrate entities, agencies,
instrumentalities, and units of the National Government, as well as expand, amend,
change, or otherwise modify their powers, functions, and authorities, including, with
respect to government-owned or controlled corporations, their corporate life,
capitalization, and other relevant aspects of their charters;
g) Take such other related actions as may be necessary to carry out the purposes
and objectives of this Decree.
Petitioners argue that the residual powers of the President under Section 20, Title I, Book III
of E.O. No. 292 refer only to the Office of the President and not to the departments, bureaus
or offices within the executive branch. They invoke Section 31, Chapter 10, Title III, Book III
of the same law, viz.:
Section 31. Continuing Authority of the President to Reorganize his Office. – The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. x x x
The interpretation of petitioners is illogically restrictive and lacks legal basis. The residual
powers granted to the President under Section 20, Title I, Book III are too broad to be
construed as having a sole application to the Office of the President. As correctly stated by
respondents, there is nothing in E.O. No. 292 which provides that the continuing authority
should apply only to the Office of the President.13 If such was the intent of the law, the same
should have been expressly stated. To adopt the argument of petitioners would result to two
conflicting provisions in one statute. It is a basic canon of statutory construction that in
interpreting a statute, care should be taken that every part thereof be given effect, on the
theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting
provisions. The rule is that a construction that would render a provision inoperative should be
avoided; instead, apparently inconsistent provisions should be reconciled whenever possible
as parts of a coordinated and harmonious whole.14
In fact, as pointed out by respondents, the President’s power to reorganize the executive
department even finds further basis under Sections 78 and 80 of R.A. No. 8522, viz.:15
Section 78. Organizational Changes – Unless otherwise provided by law or directed
by the President of the Philippines, no organizational unit or changes in key positions
in any department or agency shall be authorized in their respective organizational
structure and funded from appropriations provided by this Act.
Section 80. Scaling Down and Phase-out of Activities of Agencies within the
Executive Branch – The heads of departments, bureaus, offices and agencies are
hereby directed to identify their respective activities which are no longer essential in
the delivery of public services and which may be scaled down, phased-out or
abolished subject to Civil Service rules and regulations. Said activities shall be
reported to the Office of the President through the Department of Budget and
Management and to the Chairman, Committee on Appropriations of the House of
Representatives and the Chairman, Committee on Finance of the Senate. Actual
scaling down, phase-out or abolition of the activities shall be effected pursuant to
Circulars or Orders issued for the purpose by the Office of the President.
Petitioners contend that Section 78 refers only to changes in "organizational units" or "key
positions" in any department or agency, while Section 80 refers merely to scaling down and
phasing out of "activities" within the executive department. They argue that neither section
authorizes reorganization. Thus, the realignment of the appropriations to implement the
reorganization of the Department of Health under E.O. No. 102 is illegal.
Again, petitioners’ construction of the law is unduly restrictive. This Court has consistently
held in Larin16 and Buklod ng Kawanihang EIIB v. Zamora17 that the corresponding
pertinent provisions in the GAA in these subject cases authorize the President to effect
organizational changes in the department or agency concerned.
Be that as it may, the President must exercise good faith in carrying out the reorganization of
any branch or agency of the executive department. Reorganization is effected in good faith if
it is for the purpose of economy or to make bureaucracy more efficient.18 R.A. No.
665619 provides for the circumstances which may be considered as evidence of bad faith in
the removal of civil service employees made as a result of reorganization, to wit: (a) where
there is a significant increase in the number of positions in the new staffing pattern of the
department or agency concerned; (b) where an office is abolished and another performing
substantially the same functions is created; (c)where incumbents are replaced by those less
qualified in terms of status of appointment, performance and merit; (d)where there is a
classification of offices in the department or agency concerned and the reclassified offices
perform substantially the same functions as the original offices; and (e) where the removal
violates the order of separation.

We agree with the ruling of the Court of Appeals that the President did not commit bad faith in
the questioned reorganization, viz.:

In this particular case, there is no showing that the reorganization undertaking in the
[Department of Health] had violated this requirement, nor [are] there adequate
allegations to that effect. It is only alleged that the petitioners were directly affected
by the reorganization ordered under E.O. [No.] 102. Absent is any showing that bad
faith attended the actual implementation of the said presidential issuance.

IN VIEW WHEREOF, the petition is DENIED. The assailed Decision of the Court of Appeals
in CA-G.R. SP No. 65475 dated September 12, 2003 is AFFIRMED.

Costs against petitioners.

SO ORDERED.

SECOND DIVISION
G.R. No. 140423 July 14, 2006
JOSE LUIS ANGEL B. OROSA, petitioner,
vs.
ALBERTO C. ROA, respondent.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review is the Resolution 1 dated July 8,
1999 of the Court of Appeals (CA) in CA-G.R. SP No. 53190, dismissing the petition for
review under Rule 43 of the 1997 Rules of Civil Procedure thereat filed by the herein
petitioner from an adverse resolution of the Secretary of Justice.
The petition is casts against the following factual backdrop:
On November 27, 1996, petitioner, a dentist by profession, filed with the Pasig City
Prosecution Office a complaint-affidavit charging respondent Alberto C. Roa, likewise a
dentist, with the crime of libel. The complaint, docketed in said office as I.S. No. 96-5442,
stemmed from an article entitled "Truth vs. Rumors: Questions against Dr. Orosa" written by
respondent and published in the March-April 1996 issue of the Dental Trading Post, a bi-
monthly publication of the Dental Exchange Co., Inc. In gist, the article delved into the
possibility of a father, who happened to be an examiner in a licensure examination for
dentistry where his sons were examinees, manipulating the examinations or the results
thereof to enable his children to top the same.
In his complaint-affidavit, petitioner alleged that the article in question is defamatory as it
besmirched his honor and reputation as a dentist and as the topnotcher in the dental board
examinations held in May 1994.
Respondent denied the accusation, claiming that the article constitutes a "fair and accurate
report on a matter of both public and social concern." He averred that the article in question
was not written with malice but with a sincere desire to contribute to the improvement of the
integrity of professional examinations.
After preliminary investigation, Pasig City Prosecutor Noel Paz issued a Resolution,
dismissing petitioner's complaint in this wise:
The publication being a bona fide communication on matters of public concern, and
made without malice, we find the respondent entitled to the protection of the rule on
privileged matters under Article 354 of the Revised Penal Code.
Petitioner appealed to the Department of Justice (DOJ). Acting on the appeal, Chief State
Prosecutor Jovencito Zuño issued a Resolution (Zuño Resolution), setting aside the findings
of the City Prosecutor and directing the latter to file an Information for libel against
respondent. Accordingly, in the Regional Trial Court (RTC) of Pasig City, an Information for
libel was filed against respondent, thereat docketed as Criminal Case No. 114517.
Adversely affected, respondent appealed to the Secretary of Justice. On October 28, 1998,
then Justice Secretary Serafin Cuevas reversed the Zuño Resolution and directed the City
Prosecutor of Pasig to withdraw the Information earlier filed with the RTC. In compliance
therewith, a "Motion to Withdraw Information" was accordingly filed in court by the Pasig City
Prosecution Office.
Petitioner seasonably moved for a reconsideration but his motion was denied by the
Secretary of Justice in his Resolution of May 12, 1999.
Therefrom, petitioner went to the CA on a petition for review under Rule 43 2 of the 1997
Rules of Civil Procedure, docketed as CA-G.R. No. SP No. 53190.
As stated at the outset hereof, the CA, in the herein assailed Resolution dated July 8, 1999,
dismissed petitioner's petition for review. Partly says the CA in its dismissal Resolution:
The Pasig City Prosecution Office and the Department of Justice are not among the
quasi-judicial agencies included in Section 1 of Rule 43 whose final orders or
resolutions are subject to review by the Court of Appeals.
The Supreme Court in its Resolution En Banc dated April 8, 1997, approving the
1997 Rules of Civil Procedure in Bar Matter No. 803, did not include final orders or
resolutions issued by these agencies as appealable under Rule 43. The Court of
Appeals is therefore not at liberty to supply the omissions in the Rule, that would
constitute an encroachment on the rule making power of the Supreme Court. 3
With his motion for reconsideration having been denied by the CA in its subsequent
Resolution of October 14, 1999, petitioner is now with this Court on his submission that the
appellate court erred:
 I appeal from a resolution of the Secretary of Justice directing the prosecutor to withdraw an
XXX IN HOLDING THAT THE RESOLUTIONS OF THE DEPARTMENT OF
JUSTICE ARE NOT REVIEWABLE BY IT UNDER RULE 43 OF THE 1997 RULES
OF CIVIL PROCEDURE.
II
XXX IN FINDING THE PETITION IN CA G.R. SP NO. 53190 [WAS] PREMATURELY
FILED.
III
XXX IN HOLDING THAT THE RESOLUTIONS OF THE DEPARTMENT OF
JUSTICE ASSAILED IN CA G.R. SP NO. 53190 ARE NOT REVIEWABLE UNDER
RULE 65 (sic) OF THE 1997 RULES OF CIVIL PROCEDURE SINCE THESE
RESOLUTIONS WERE ISSUED BY THE SECRETARY OF JUSTICE IN THE
EXERCISE OF HIS POWER OF CONTROL AND SUPERVISION OVER
PROSECUTORS.
IV
XXX IN NOT RESOLVING THE PETITION IN CA G.R. SP NO. 53190 ON THE
MERITS.
V Commission, and voluntary arbitrators authorized by law.
XXX IN NOT REVERSING THE ASSAILED RESOLUTION OF THE DEPARTMENT
OF JUSTICE IN CA G.R. SP NO. 53190 ON THE FOLLOWING GROUNDS:
a. RESPONDENT'S APPEAL FROM THE RESOLUTION OF THE
DEPARTMENT OF JUSTICE, THROUGH THE CHIEF STATE
PROSECUTOR, DATED JANUARY 22, 1998, WAS FATALLY DEFECTIVE.
b. RESPONDENT'S ARTICLE WAS DEFAMATORY.
c. MALICE ATTENDED THE PUBLICATION OF RESPONDENT'S ARTICLE.
d. RESPONDENT'S ARTICLE WAS NOT PROTECTED BY THE MANTLE
OF PRIVILEGED MATTER.
As the Court sees it, the petition commends for its consideration the issue of whether or not a
petition for review under Rule 43 of the 1997 Rules of Civil Procedure is a proper mode of
information in a criminal case.
It is petitioner's thesis that Rule 43 was intended to apply to all quasi-judicial agencies
exercising quasi-judicial functions. Upon this premise, petitioner submits that resolutions of
the DOJ in the exercise of its quasi-judicial functions are properly appealable to the CA via a
petition for review under Rule 43, adding that the quasi-judicial bodies enumerated under
said Rule are not exclusive.
Petitioner's above posture, while valid to a point, will not carry the day for him.
Rule 43 governs all appeals from the Court of Tax Appeals and quasi-judicial bodies to the
CA. Section 1 thereof provides:
Section 1. Scope.― This Rule shall apply to appeals from judgments or final orders
of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions
of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President,
Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic Act No. 6657,
Government Service and Insurance System, Employees' Compensation
Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments, Construction Industry Arbitration
As may be noted, the DOJ is not among the agencies expressly enumerated under Section 1
of Rule 43, albeit any suggestion that it does not perform quasi-judicial functions may have to
be rejected. However, its absence from the list of agencies mentioned thereunder does not,
by this fact alone, already imply its exclusion from the coverage of said Rule. This is because
said Section 1 uses the phrase "among these agencies," thereby implying that the
enumeration made is not exclusive of the agencies therein listed.
There is compelling reason to believe, however, that the exclusion of the DOJ from the list is
deliberate, being in consonance with the constitutional power of control4 lodged in the
President over executive departments, bureaus and offices. This power of control, which
even Congress cannot limit, let alone withdraw, means the power of the Chief Executive to
review, alter, modify, nullify, or set aside what a subordinate, e.g., members of the Cabinet
and heads of line agencies, had done in the performance of their duties and to substitute the
judgment of the former for that of the latter.5
Being thus under the control of the President, the Secretary of Justice, or, to be precise, his
decision is subject to review of the former. In fine, recourse from the decision of the Secretary
of Justice should be to the President, instead of the CA, under the established principle of WHEREFORE, the instant petition is DENIED and the assailed resolution of the Court of
exhaustion of administrative remedies. The thrust of the rule on exhaustion of administrative Appeals is AFFIRMED.
remedies is that if an appeal or remedy obtains or is available within the administrative
machinery, this should be resorted to before resort can be made to the courts. 6 Immediate SO ORDERED.
recourse to the court would be premature and precipitate; 7 subject to defined exception, a
case is susceptible of dismissal for lack of cause of action should a party fail to exhaust
administrative remedies.8 Notably, Section 1, supra, of Rule 43 includes the Office of the
President in the agencies named therein, thereby accentuating the fact that appeals from
rulings of department heads must first be taken to and resolved by that office before any
appellate recourse may be resorted to.

Given the above perspective, the question of whether or not a preliminary investigation is a
quasi-judicial proceeding, as petitioner posits, or whether or not the Secretary of Justice
performs quasi-judicial functions when he reviews the findings of a state or city prosecutor is
of little moment. The Court wishes, however, to draw attention to what it said in Santos v.
Go9 where the Court, citing Bautista v. Court of Appeals,10 stated:

[t]he prosecutor in a preliminary investigation does not determine the guilt or

innocence of the accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and is often the only means
of discovering the persons who may be reasonably charged with a crime and to
enable the fiscal [prosecutor] to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining whether a
crime has been committed and whether there is probable cause to believe that the
accused is guilty thereof. While the fiscal [prosecutor] makes that determination, he
cannot be said to be acting as a quasi-court, for it is the courts, ultimately that pass
judgment on the accused, not the fiscal [prosecutor]. (Words in bracket ours)

While now perhaps anti-climactic to delve into, the ensuing holdings of the appellate court are
worth quoting:

The petition is premature. The Information charging respondent with the crime of
libel, docketed as Criminal Case No. 114517, is now with Branch 155 of the Regional
Trial Court in Pasig City. Thus understood, the said trial court has now the control of
the case. The remedy of petitioner is to reiterate the reasons or grounds alleged in
his present petition by way of an appropriate opposition to the Pasig City Prosecution
Office's "Motion to Withdraw Information" dated November 5, 1998, filed in
compliance with the assailed directive of the Secretary of Justice. Having control of
the case, the trial court can look into the claim of petitioner. This will enable the trial
court to rule on the matter first without the precipitate intervention of this Court. In
other words, this is a prerequisite to the elevation of the case to this Court. 11

In view of the foregoing disquisition, the Court deems it unnecessary to address the other
issues raised in the petition.
 Republic of the Philippines For consideration before the Court are two consolidated cases5 both of which essentially
SUPREME COURT assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled
Manila "Creating the Philippine Truth Commission of 2010."

EN BANC The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner
Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive
G.R. No. 192935 December 7, 2010 Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI
of the Constitution6 as it usurps the constitutional authority of the legislature to create a public
LOUIS "BAROK" C. BIRAOGO, Petitioner, office and to appropriate funds therefor.7
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent. The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed
by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando
x - - - - - - - - - - - - - - - - - - - - - - -x B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives.

G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET
AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which these
powers are distributed among the several departments.2 The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.3 Constitutional doctrines must remain steadfast no
matter what may be the tides of time. It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the whims and caprices of government and
the people who run it.4
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010
elections, when then Senator Benigno Simeon Aquino III declared his staunch condemnation
of graft and corruption with his slogan, "Kung walang corrupt, walang mahirap." The Filipino
people, convinced of his sincerity and of his ability to carry out this noble objective, catapulted
the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special
body to investigate reported cases of graft and corruption allegedly committed during the
previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive
Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission).
Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly
enshrines the principle that a public office is a public trust and mandates that public officers
and employees, who are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and
notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic,
and social life of a nation; in a very special way it inflicts untold misfortune and misery on the
poor, the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined
the people’s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain reports
of large scale graft and corruption in the government and to put a closure to them by the filing
of the appropriate cases against those involved, if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the Government and in their
public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last
elections "kung walang corrupt, walang mahirap" expresses a solemn pledge that if elected,
he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding
out the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice
for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known
as the Revised Administrative Code of the Philippines, gives the President the continuing
authority to reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of
graft and corruption referred to in Section 1, involving third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch, including government-owned or
controlled corporations, to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by
committees thereof relating to matters or subjects being investigated by the
Commission;
d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator, information or
documents in respect to corruption cases filed with the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state
witness to ensure that the ends of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of Court of the Philippines be
admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees and
their private sector co-principals, accomplices or accessories, if any, when in the
course of its investigation the Commission finds that there is reasonable ground to
believe that they are liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the
Department of Justice or any of the agencies under it, and the Presidential Anti-Graft
Commission, for such assistance and cooperation as it may require in the discharge
of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other
personnel determined by it as necessary to carry out its mandate;
 j) Promulgate its rules and regulations or rules of procedure it deems necessary to
effectively and efficiently carry out the objectives of this Executive Order and to
ensure the orderly conduct of its investigations, proceedings and hearings, including
the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in
connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any
government official or personnel who, without lawful excuse, fails to appear upon subpoena
issued by the Commission or who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when required, shall be
subject to administrative disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its
functions, and perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on
or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by way of a
supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional,
the same shall not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC)
is a mere ad hoc body formed under the Office of the President with the primary task to
investigate reports of graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as an "independent collegial
body," it is essentially an entity within the Office of the President Proper and subject to his
control. Doubtless, it constitutes a public office, as an ad hoc body is one. 8
To accomplish its task, the PTC shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-
judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have subpoena powers but it has no power to
cite people in contempt, much less order their arrest. Although it is a fact-finding body, it
cannot determine from such facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot impose criminal, civil or
administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been created
as official, transitory and non-judicial fact-finding bodies "to establish the facts and context of
serious violations of human rights or of international humanitarian law in a country’s
past."9 They are usually established by states emerging from periods of internal unrest, civil
strife or authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following characteristics:
(1) they examine only past events; (2) they investigate patterns of abuse committed over a
period of time, as opposed to a particular event; (3) they are temporary bodies that finish their
work with the submission of a report containing conclusions and recommendations; and (4)
they are officially sanctioned, authorized or empowered by the State. 10 "Commission’s
members are usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and recommend
institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war
crime tribunals are examples of a retributory or vindicatory body set up to try and punish
those responsible for crimes against humanity. A form of a reconciliatory tribunal is the Truth
and Reconciliation Commission of South Africa, the principal function of which was to heal
the wounds of past violence and to prevent future conflict by providing a cathartic experience
for victims.
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on
reconciliation than on judicial retribution, while the marching order of the PTC is the
identification and punishment of perpetrators. As one writer 12puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in
his inaugural speech: "To those who talk about reconciliation, if they mean that they would
like us to simply forget about the wrongs that they have committed in the past, we have this
to say: There can be no reconciliation without justice. When we allow crimes to go
unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court
to declare it unconstitutional and to enjoin the PTC from performing its functions. A perusal of
the arguments of the petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the
Congress to create a public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of
1987 cannot legitimize E.O. No. 1 because the delegated authority of the President
to structurally reorganize the Office of the President to achieve economy, simplicity
and efficiency does not include the power to create an entirely new public office
which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it
vested the "Truth Commission" with quasi-judicial powers duplicating, if not
superseding, those of the Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the Administrative Code of
1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous administration
as if corruption is their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent
and general international practice of four decades wherein States constitute truth
commissions to exclusively investigate human rights violations, which customary
practice forms part of the generally accepted principles of international law which the
Philippines is mandated to adhere to pursuant to the Declaration of Principles
enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in
partisan hostility, a launching pad for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread poverty will altogether
vanish if corruption is eliminated without even addressing the other major causes of
poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is
of no moment because neither laches nor estoppel can bar an eventual question on
the constitutionality and validity of an executive issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the
assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office
because the President’s executive power and power of control necessarily include
the inherent power to conduct investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution, Revised Administrative Code of
1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as amended by P.D.
No. 1772), R.A. No. 9970,17 and settled jurisprudence that authorize the President to
create or form such bodies.
 2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because
there is no appropriation but a mere allocation of funds already appropriated by
Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office
of the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it
is a fact-finding body and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and
presidential issuances creating similar bodies to justify the creation of the PTC such as
Presidential Complaint and Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance Efficiency (PCAPE) by President
Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO)by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following are the principal
issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective
petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of
powers by usurping the powers of Congress to create and to appropriate funds for
public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman
and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the
Court needs to ascertain whether the requisites for a valid exercise of its power of judicial
review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of
judicial power; (2) the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for
failure to demonstrate their personal stake in the outcome of the case. It argues that the
petitioners have not shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming to be the subject of the
commission’s investigations, petitioners will not sustain injury in its creation or as a result of
its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of the petitioners-
legislators to assail Executive Order No. 1. Evidently, their petition primarily invokes
usurpation of the power of the Congress as a body to which they belong as members. This
certainly justifies their resolve to take the cudgels for Congress as an institution and present
the complaints on the usurpation of their power and rights as members of the legislature
before the Court. As held in Philippine Constitution Association v. Enriquez, 21
To the extent the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a
case, any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and
privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to
question the validity of any official action which, to their mind, infringes on their prerogatives
as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question
the creation of the PTC and the budget for its operations.23 It emphasizes that the funds to be
used for the creation and operation of the commission are to be taken from those funds
already appropriated by Congress. Thus, the allocation and disbursement of funds for the
commission will not entail congressional action but will simply be an exercise of the
President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in
danger of sustaining, any personal and direct injury attributable to the implementation of
Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that may justify
his clamor for the Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v. Arroyo 24 explained the deep-
seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a given question." In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section
2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action
must be prosecuted or defended in the name of the real party in interest." Accordingly,
the "real-party-in interest" is "the party who stands to be benefited or injured by the judgment
in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiff’s standing
is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts
a "public right" in assailing an allegedly illegal official action, does so as a representative of
the general public. He may be a person who is affected no differently from any other person.
He could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either
case, he has to adequately show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public order and the securing
of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins: "In matter of mere public right, however…the people are the
real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot
be denied."
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that
the person who impugns the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included.
Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers,
and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of paramount public
interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the standing
requirements may be relaxed and a suit may be allowed to prosper even where there is no
direct injury to the party claiming the right of judicial review. In the first Emergency Powers
Cases,27 ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general interest shared in
common with the public.
The OSG claims that the determinants of transcendental importance28 laid down in CREBA v.
ERC and Meralco29are non-existent in this case. The Court, however, finds reason in
Biraogo’s assertion that the petition covers matters of transcendental importance to justify the
exercise of jurisdiction by the Court. There are constitutional issues in the petition which
deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount importance not only to
the public but also to the Bench and the Bar, they should be resolved for the guidance of
all.30 Undoubtedly, the Filipino people are more than interested to know the status of the
President’s first effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that clothe the issue
in the eyes of the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a
public office and not merely an adjunct body of the Office of the President.31 Thus, in order
that the President may create a public office he must be empowered by the Constitution, a
statute or an authorization vested in him by law. According to petitioner, such power cannot
be presumed32 since there is no provision in the Constitution or any specific law that
authorizes the President to create a truth commission.33 He adds that Section 31 of the
Administrative Code of 1987, granting the President the continuing authority to reorganize his
office, cannot serve as basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
"abolish."34 Insofar as it vests in the President the plenary power to reorganize the Office of
the President to the extent of creating a public office, Section 31 is inconsistent with the
principle of separation of powers enshrined in the Constitution and must be deemed repealed
upon the effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office
lies within the province of Congress and not with the executive branch of government. They
maintain that the delegated authority of the President to reorganize under Section 31 of the
Revised Administrative Code: 1) does not permit the President to create a public office, much
less a truth commission; 2) is limited to the reorganization of the administrative structure of
the Office of the President; 3) is limited to the restructuring of the internal organs of the Office
of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.36Such continuing authority of the President to reorganize
his office is limited, and by issuing Executive Order No. 1, the President overstepped the
limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the
President of a fact-finding body such as a truth commission. Pointing to numerous offices
created by past presidents, it argues that the authority of the President to create public offices
within the Office of the President Proper has long been recognized.37 According to the OSG,
the Executive, just like the other two branches of government, possesses the inherent
authority to create fact-finding committees to assist it in the performance of its constitutionally
mandated functions and in the exercise of its administrative functions.38 This power, as the
OSG explains it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of the Constitution. 39
It contends that the President is necessarily vested with the power to conduct fact-finding
investigations, pursuant to his duty to ensure that all laws are enforced by public officials and
employees of his department and in the exercise of his authority to assume directly the
functions of the executive department, bureau and office, or interfere with the discretion of his
officials.40 The power of the President to investigate is not limited to the exercise of his power
of control over his subordinates in the executive branch, but extends further in the exercise of
his other powers, such as his power to discipline subordinates, 41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed on matters which he is
entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the
President has the power to reorganize the offices and agencies in the executive department
in line with his constitutionally granted power of control and by virtue of a valid delegation of
the legislative power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create
offices. For the OSG, the President may create the PTC in order to, among others, put a
closure to the reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the PTC fall within the
ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative
Code? Section 31 contemplates "reorganization" as limited by the following functional and
structural lines: (1) restructuring the internal organization of the Office of the President Proper
by abolishing, consolidating or merging units thereof or transferring functions from one unit to
another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of the
President to any other Department/Agency or vice versa. Clearly, the provision refers to
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already
existent but a modification or alteration thereof has to be effected. The creation of an office is
nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the
question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the plainest meaning attributable to the term
"restructure"– an "alteration of an existing structure." Evidently, the PTC was not part of the
structure of the Office of the President prior to the enactment of Executive Order No. 1. As
held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize any department or
agency in the executive branch does not have to end here. We must not lose sight of the very
source of the power – that which constitutes an express grant of power. Under Section 31,
Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987),
"the President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre [323
SCRA 312 (2000)], we ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions." It takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between
them. The EIIB is a bureau attached to the Department of Finance. It falls under the Office of
the President. Hence, it is subject to the President’s continuing authority to reorganize.
[Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s power of control.
Control is essentially the power to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former
with that of the latter.47 Clearly, the power of control is entirely different from the power to
create public offices. The former is inherent in the Executive, while the latter finds basis from
either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the
President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the above
provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.48 The said
law granted the President the continuing authority to reorganize the national government,
including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities, transfer appropriations, and
to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of
E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary. 49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President
to create a public office. Said decree is already stale, anachronistic and inoperable. P.D. No.
1416 was a delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree, embodied in its last
"Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate
flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the
interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon the
convening of the First Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution. In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas
clause of P.D. 1416 says "it was enacted to prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you
agree with me that P.D. 1416 should not be considered effective anymore upon the
promulgation, adoption, ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least, upon the adoption of the 1987 Constitution,
correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the basis of P.D. No.
1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under Section
17, Article VII of the Constitution, imposing upon the President the duty to ensure that the
laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal
branches of government is a grant of all powers inherent in them. The President’s power to
conduct investigations to aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is inherent in the President’s
powers as the Chief Executive. That the authority of the President to conduct investigations
and to create bodies to execute this power is not explicitly mentioned in the Constitution or in
statutes does not mean that he is bereft of such authority. 51 As explained in the landmark
case of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential system of government
and restored the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the
laws, for the President is head of state as well as head of government and whatever powers
inhere in such positions pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the laws is only one of the
powers of the President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations
on the exercise of specific powers of the President, it maintains intact what is traditionally
considered as within the scope of "executive power." Corollarily, the powers of the President
cannot be said to be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed.
As stated above, the powers of the President are not limited to those specific powers under
the Constitution.53 One of the recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if laws have been faithfully executed. Thus,
in Department of Health v. Camposano,54 the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to look into the
administrative charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to
which respondents belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298 as mandate, the legality
of the investigation is sustained. Such validity is not affected by the fact that the investigating
team and the PCAGC had the same composition, or that the former used the offices and
facilities of the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to
allow an inquiry into matters which the President is entitled to know so that he can be
properly advised and guided in the performance of his duties relative to the execution and
enforcement of the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the
Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to declare such executive
power as non-existent just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate
funds for the operation of a public office, suffice it to say that there will be no appropriation
but only an allotment or allocations of existing funds already appropriated. Accordingly, there
is no usurpation on the part of the Executive of the power of Congress to appropriate funds.
Further, there is no need to specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General, "whatever funds the Congress
has provided for the Office of the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be allocated to the PTC shall be
subject to existing auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are faithfully executed is
well recognized. It flows from the faithful-execution clause of the Constitution under Article
VII, Section 17 thereof.56 As the Chief Executive, the president represents the government as
a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the executive
department.57
Invoking this authority, the President constituted the PTC to primarily investigate reports of
graft and corruption and to recommend the appropriate action. As previously stated, no
quasi-judicial powers have been vested in the said body as it cannot adjudicate rights of
persons who come before it. It has been said that "Quasi-judicial powers involve the power to
hear and determine questions of fact to which the legislative policy is to apply and to decide
in accordance with the standards laid down by law itself in enforcing and administering the
same law."58 In simpler terms, judicial discretion is involved in the exercise of these quasi-
judicial power, such that it is exclusively vested in the judiciary and must be clearly authorized
by the legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was delineated
by the Court in Cariño v. Commission on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe
into, research on, study. The dictionary definition of "investigate" is "to observe or study
closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe
x x: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to
find out, to learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by application of the law
to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to search into; to examine and inquire into
with care and accuracy; to find out by careful inquisition; examination; the taking of evidence;
a legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described
as "(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2
Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection
of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the
rights and duties of the parties to a court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon
as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To
pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a
judicial determination of a fact, and the entry of a judgment." [Italics included. Citations
Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of
justice, or even a quasi-judicial agency or office. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function. To be considered
as such, the act of receiving evidence and arriving at factual conclusions in a controversy
must be accompanied by the authority of applying the law to the factual conclusions to the
end that the controversy may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law. 60 Even respondents
themselves admit that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ
or erode their respective powers. If at all, the investigative function of the commission will
complement those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of suspected offenders, much
less adjudication on the merits of the charges against them,63 is certainly not a function given
to the commission. The phrase, "when in the course of its investigation," under Section 2(g),
highlights this fact and gives credence to a contrary interpretation from that of the petitioners.
The function of determining probable cause for the filing of the appropriate complaints before
the courts remains to be with the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but
is shared with other similarly authorized government agencies. Thus, in the case of
Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies such as the PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges against public employees
and officials is likewise concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians to investigate
complaints against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate
criminal cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage,
from any investigatory agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct
of a preliminary investigation or the determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to investigate is limited to
obtaining facts so that it can advise and guide the President in the performance of his duties
relative to the execution and enforcement of the laws of the land. In this regard, the PTC
commits no act of usurpation of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1,
Title III, Book IV in the Revised Administrative Code is by no means exclusive and, thus, can
be shared with a body likewise tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are
to be accorded conclusiveness. Much like its predecessors, the Davide Commission, the
Feliciano Commission and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider degree
of latitude to decide whether or not to reject the recommendation. These offices, therefore,
are not deprived of their mandated duties but will instead be aided by the reports of the PTC
for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1
in view of its apparent transgression of the equal protection clause enshrined in Section 1,
Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same class such
that the intent of singling out the "previous administration" as its sole object makes the PTC
an "adventure in partisan hostility."66 Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all administrations
previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases of graft and
corruption must encompass acts committed not only during the administration of former
President Arroyo but also during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it does not fall under
the recognized exceptions because first, "there is no substantial distinction between the
group of officials targeted for investigation by Executive Order No. 1 and other groups or
persons who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end corruption." 69 In
order to attain constitutional permission, the petitioners advocate that the commission should
deal with "graft and grafters prior and subsequent to the Arroyo administration with the strong
arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous
administration" as the initial subject of the investigation, following Section 17 thereof, the PTC
will not confine itself to cases of large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would confine its proceedings to
officials of the previous administration, the petitioners argue that no offense is committed
against the equal protection clause for "the segregation of the transactions of public officers
during the previous administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the Executive Order
seeks to correct."72 To distinguish the Arroyo administration from past administrations, it
recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and
corruption in the previous administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a closure to
them by the filing of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and confidence in the Government
and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is
warranted by the reality that unlike with administrations long gone, the current administration
will most likely bear the immediate consequence of the policies of the previous
administration.
Third. The classification of the previous administration as a separate class for investigation
lies in the reality that the evidence of possible criminal activity, the evidence that could lead to
recovery of public monies illegally dissipated, the policy lessons to be learned to ensure that
anti-corruption laws are faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to investigations
to provide closure to issues that are pivotal to national life or even as a routine measure of
due diligence and good housekeeping by a nascent administration like the Presidential
Commission on Good Government (PCGG), created by the late President Corazon C. Aquino
under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her predecessor
former President Ferdinand Marcos and his cronies, and the Saguisag Commission created
by former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc
and independent citizens’ committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V.
Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of
right which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection
of the laws is embraced in the concept of due process, as every unfair discrimination offends
the requirements of justice and fair play. It has been embodied in a separate clause,
however, to provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on the basis of the
due process clause. But if the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection clause. 74
"According to a long line of decisions, equal protection simply requires that all persons or
things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed."75 It "requires public bodies and institutions to treat similarly situated
individuals in a similar manner."76 "The purpose of the equal protection clause is to secure
every person within a state’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its improper execution through the
state’s duly constituted authorities."77 "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just those of the
legislature.79 Its inhibitions cover all the departments of the government including the political
and executive departments, and extend to all actions of a state denying equal protection of
the laws, through whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as determined according
to a valid classification. Indeed, the equal protection clause permits classification. Such
classification, however, to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the
purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial differences do not make
for a valid classification."82
For a classification to meet the requirements of constitutionality, it must include or embrace
all persons who naturally belong to the class.83 "The classification will be regarded as invalid
if all the members of the class are not similarly treated, both as to rights conferred and
obligations imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long as this is
achieved, all those covered by the classification are to be treated equally. The mere fact that
an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to
him."84
The classification must not be based on existing circumstances only, or so constituted as to
preclude addition to the number included in the class. It must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and conditions. It must not
leave out or "underinclude" those that should otherwise fall into a certain classification. As
elucidated in Victoriano v. Elizalde Rope Workers' Union85 and reiterated in a long line of
cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality, so
that it goes without saying that the mere fact of inequality in no manner determines the matter
of constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth "concerning the reported cases of graft and
corruption during the previous administration"87 only. The intent to single out the previous
administration is plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding
out the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice
for all;
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of such
scale and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding investigation of reported cases of
graft and corruption referred to in Section 1, involving third level public officers and higher,
their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration and thereafter submit its finding and recommendations to the
President, Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of
a class, that is, a class of past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the Arroyo administration and
other past administrations, these distinctions are not substantial enough to merit the
restriction of the investigation to the "previous administration" only. The reports of widespread
corruption in the Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo
administration. As Justice Isagani Cruz put it, "Superficial differences do not make for a valid
classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of
the intended investigation to the previous administration only. The OSG ventures to opine
that "to include other past administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89The reason given is specious. It is without
doubt irrelevant to the legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or that the earlier reports
involving the earlier administrations were already inquired into is beside the point. Obviously,
deceased presidents and cases which have already prescribed can no longer be the subjects
of inquiry by the PTC. Neither is the PTC expected to conduct simultaneous investigations of
previous administrations, given the body’s limited time and resources. "The law does not
require the impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a century’s worth of graft cases. However, the fact
remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be true
to its mandate of searching for the truth, must not exclude the other past administrations. The
PTC must, at least, have the authority to investigate all past administrations.
While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down
for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins, 92
Though the law itself be fair on its face and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and an unequal hand, so as practically to
make unjust and illegal discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of the constitution.
[Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The
Court, however, is of the considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights determined and all
public authority administered.93 Laws that do not conform to the Constitution should be
stricken down for being unconstitutional.94While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be read
together with the provisions of the Constitution. To exclude the earlier administrations in the
guise of "substantial distinctions" would only confirm the petitioners’ lament that the subject
executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian,95 it
was written: "A rather limited number of such classifications have routinely been held or
assumed to be arbitrary; those include: race, national origin, gender, political activity or
membership in a political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.96 "Such a classification
must not be based on existing circumstances only, or so constituted as to preclude additions
to the number included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. Furthermore, all who are in
situations and circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the influence
of the law and treated by it in the same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law
under the equal protection clause."98 "Legislation is not unconstitutional merely because it is
not all-embracing and does not include all the evils within its reach."99 It has been written that
a regulation challenged under the equal protection clause is not devoid of a rational predicate
simply because it happens to be incomplete.100 In several instances, the underinclusiveness
was not considered a valid reason to strike down a law or regulation where the purpose can
be attained in future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not run the risk of
losing the entire remedial scheme simply because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the previous administration
was picked out was deliberate and intentional as can be gleaned from the fact that it was
underscored at least three times in the assailed executive order. It must be noted that
Executive Order No. 1 does not even mention any particular act, event or report to be
focused on unlike the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies
that the commission does not only confine itself to cases of large scale graft and corruption
committed during the previous administration.104The OSG points to Section 17 of Executive
Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by way of a
supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to
expand the scope of investigations of the PTC so as to include the acts of graft and
corruption committed in other past administrations, it does not guarantee that they would be
covered in the future. Such expanded mandate of the commission will still depend on the
whim and caprice of the President. If he would decide not to include them, the section would
then be meaningless. This will only fortify the fears of the petitioners that the Executive Order
No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the Arroyo
administration."105
The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14)
does not violate the equal protection clause." The decision, however, was devoid of any
discussion on how such conclusory statement was arrived at, the principal issue in said case
being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court,
in the exercise of its constitutionally mandated power of Judicial Review with respect to
recent initiatives of the legislature and the executive department, is exercising undue
interference. Is the Highest Tribunal, which is expected to be the protector of the Constitution,
itself guilty of violating fundamental tenets like the doctrine of separation of powers? Time
and again, this issue has been addressed by the Court, but it seems that the present political
situation calls for it to once again explain the legal basis of its action lest it continually be
accused of being a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is
vested with Judicial Power that "includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave of abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the
power to declare a treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between the Supreme Court, on
one hand, and the two co-equal bodies of government, on the other. Many times the Court
has been accused of asserting superiority over the other departments.
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the
Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out
the provisions of Executive Order No. 1.

To answer this accusation, the words of Justice Laurel would be a good source of SO ORDERED.
enlightenment, to wit: "And when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them."107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a
co-equal body but rather simply making sure that any act of government is done in
consonance with the authorities and rights allocated to it by the Constitution. And, if after said
review, the Court finds no constitutional violations of any sort, then, it has no more authority
of proscribing the actions under review. Otherwise, the Court will not be deterred to
pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all
geared towards the betterment of the nation and its people. But then again, it is important to
remember this ethical principle: "The end does not justify the means." No matter how noble
and worthy of admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it pass. It will continue to
uphold the Constitution and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its
rectitude."109

Lest it be misunderstood, this is not the death knell for a truth commission as nobly
envisioned by the present administration. Perhaps a revision of the executive issuance so as
to include the earlier past administrations would allow it to pass the test of reasonableness
and not be an affront to the Constitution. Of all the branches of the government, it is the
judiciary which is the most interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be emphasized that the search for
the truth must be within constitutional bounds for "ours is still a government of laws and not of
men."110
 Section 1. Realignment of Administrative Units:

The DENR hereby adopts a policy to establish at least one Community Environment and
Natural Resources Office (CENRO) or Administrative Unit per Congressional District except
in the Autonomous Region of Muslim Mindanao (ARMM) and the National Capital Region
(NCR). The Regional Executive Directors (REDs) are hereby authorized to realign/relocate
existing CENROs and implement this policy in accordance with the attached distribution list
per region which forms part of this Order. Likewise, the following realignment and
administrative arrangements are hereby adopted:
FIRST DIVISION
xxx xxx xxx
G.R. No. 149724 August 19, 2003
1.6. The supervision of the Provinces of South Cotabato and Sarangani shall be transferred
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, represented herein from Region XI to XII.4
by its Secretary, HEHERSON T. ALVAREZ, Petitioner,
vs. Respondents, employees of the DENR Region XII who are members of the employees
DENR REGION 12 EMPLOYEES, represented by BAGUIDALI KARIM, Acting President association, "COURAGE", represented by their Acting President, Baguindanai A. Karim, filed
of COURAGE (DENR Region 12 Chapter), Respondents. with the Regional Trial Court of Cotabato, a petition for nullity of orders with prayer for
preliminary injunction.
DECISION
On December 8, 1999, the trial court issued a temporary restraining order enjoining petitioner
YNARES-SANTIAGO, J.: from implementing the assailed Memorandum. The dispositive portion of the Order reads:

This is a petition for review assailing the Resolutions dated May 31, 2000 1 of the Court of WHEREFORE, defendants DENR Secretary Antonio H. Cerilles and Regional Executive
Appeals which dismissed the petition for certiorari in CA-G.R. SP No. 58896, and its Director Israel C. Gaddi are hereby ordered to cease and desist from doing the act
Resolution dated August 20, 20012 , which denied the motion for reconsideration. complained of, namely, to stop the transfer of DENR [Region] 12 offices from Cotabato City
to Korandal (Marbel), South Cotabato.
The facts are as follows:
xxx xxx xxx.
On November 15, 1999, Regional Executive Director of the Department of Environment and
Natural Resources for Region XII, Israel C. Gaddi, issued a Memorandum 3 directing the SO ORDERED.5
immediate transfer of the DENR XII Regional Offices from Cotabato City to Koronadal
(formerly Marbel), South Cotabato. The Memorandum was issued pursuant to DENR Petitioner filed a Motion for Reconsideration with Motion to Dismiss, raising the following
Administrative Order No. 99-14, issued by then DENR Secretary Antonio H. Cerilles, which grounds:
reads in part:
I.
Subject: Providing for the Redefinition of Functions and Realignment of Administrative
Units in the Regional and Field Offices: The power to transfer the Regional Office of the Department of Environment and
Natural Resources (DENR) is executive in nature.
Pursuant to Executive Order No. 192, dated June 10, 1987 and as an interim administrative
arrangement to improve the efficiency and effectiveness of the Department of Environment II.
and Natural Resources (DENR) in delivering its services pending approval of the
government-wide reorganization by Congress, the following redefinition of functions and
realignment of administrative units in the regional and field offices are hereby promulgated: The decision to transfer the Regional Office is based on Executive Order No. 429,
which reorganized Region XII.
 III.
The validity of EO 429 has been affirmed by the Honorable Supreme Court in the
Case of Chiongbian vs. Orbos (1995) 245 SCRA 255.
IV.
Since the power to reorganize the Administrative Regions is Executive in Nature
citing Chiongbian, the Honorable Court has no jurisdiction to entertain this petition.6
On January 14, 2000, the trial court rendered judgment, the dispositive portion of which
reads:
CONSEQUENTLY, order is hereby issued ordering the respondents herein to cease and
desist from enforcing their Memorandum Order dated November 15, 1999 relative to the
transfer of the DENR Regional Offices from Region 12 to Region 11 at Koronadal, South
Cotabato for being bereft of legal basis and issued with grave abuse of discretion amounting
to lack or excess of jurisdiction on their part, and they are further ordered to return back the
seat of the DENR Regional Offices 12 to Cotabato City.
SO ORDERED.7
Petitioner’s motion for reconsideration was denied in an Order dated April 10, 2000. A petition
for certiorari under Rule 65 was filed before the Court of Appeals, docketed as CA-G.R. SP
No. 58896. The petition was dismissed outright for: (1) failure to submit a written explanation
why personal service was not done on the adverse party; (2) failure to attach affidavit of
service; (3) failure to indicate the material dates when copies of the orders of the lower court
were received; (4) failure to attach certified true copy of the order denying petitioner’s motion
for reconsideration; (5) for improper verification, the same being based on petitioner’s
"knowledge and belief," and (6) wrong remedy of certiorari under Rule 65 to substitute a lost
appeal.8
The motion for reconsideration was denied in a resolution dated August 20, 2001.9 Hence,
this petition based on the following assignment of errors:
I been guided by the principle that the rules of procedure are not to be applied in a very rigid
RULES OF PROCEDURE CAN NOT BE USED TO DEFEAT THE ENDS OF SUBSTANTIAL
JUSTICE
II
THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 WHICH WAS
AFFIRMED IN THE QUESTIONED RESOLUTIONS OF THE COURT OF APPEALS DATED
31 MAY 2000 AND 20 AUGUST 2001 IS PATENTLY ILLEGAL AND SHOULD BE
NULLIFIED, CONSIDERING THAT:
A. RESPONDENTS HAVE NO CAUSE OF ACTION AGAINST PETITIONER AS
THEY HAVE NO RIGHT TO CAUSE THE DENR REGION 12 OFFICE TO REMAIN
IN COTABATO CITY.
B. THE STATE DID NOT GIVE ITS CONSENT TO BE SUED.
C. THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS
CONTRARY TO THE RULE OF PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF OFFICIAL FUNCTIONS.
D. IN ANY EVENT, THE DECISION OF THE LOWER COURT DATED 14 JANUARY
2000 IS CONTRARY TO THE LETTER AND INTENT OF EXECUTIVE ORDER NO.
429 AND REPUBLIC ACT NO. 6734.
E. THE DETERMINATION OF THE PROPRIETY AND PRACTICALITY OF THE
TRANSFER OF REGIONAL OFFICES IS INHERENTLY EXECUTIVE, AND
THEREFORE, NON-JUSTICIABLE.10
In essence, petitioner argues that the trial court erred in enjoining it from causing the transfer
of the DENR XII Regional Offices, considering that it was done pursuant to DENR
Administrative Order 99-14.
The issues to be resolved in this petition are: (1) Whether DAO-99-14 and the Memorandum
implementing the same were valid; and (2) Whether the DENR Secretary has the authority to
reorganize the DENR.
Prefatorily, petitioner prays for a liberal application of procedural rules considering the greater
interest of justice.
This Court is fully aware that procedural rules are not to be simply disregarded for these
prescribed procedures ensure an orderly and speedy administration of justice. However, it is
equally true that litigation is not merely a game of technicalities. Time and again, courts have
and technical manner, as rules of procedure are used only to help secure and not to override
substantial justice.11 Thus, if the application of the Rules would tend to frustrate rather than
promote justice, it is always within the power of this Court to suspend the rules, or except a
particular case from its operation.12
Despite the presence of procedural flaws, we find it necessary to address the issues because
of the demands of public interest, including the need for stability in the public service and the
serious implications this case may cause on the effective administration of the executive
department. Although no appeal was made within the reglementary period to appeal,
nevertheless, the departure from the general rule that the extraordinary writ of certiorari
cannot be a substitute for the lost remedy of appeal is justified because the execution of the
assailed decision would amount to an oppressive exercise of judicial authority. 13
Petitioner maintains that the assailed DAO-99-14 and the implementing memorandum were
valid and that the trial court should have taken judicial notice of Republic Act No. 6734,
otherwise known as "An Organic Act for the Autonomous Region in Muslim Mindanao," and
its implementing Executive Order 429,14 as the legal bases for the issuance of the assailed
DAO-99-14. Moreover, the validity of R.A. No. 6734 and E.O. 429 were upheld in the case
of Chiongbian v. Orbos.15 Thus, the respondents cannot, by means of an injunction, force the
DENR XII Regional Offices to remain in Cotabato City, as the exercise of the authority to
transfer the same is executive in nature.
It is apropos to reiterate the elementary doctrine of qualified political agency, thus:
Under this doctrine, which recognizes the establishment of a single executive, all executive
and administrative organizations are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the Constitution or law to act in person or
the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive.16
This doctrine is corollary to the control power of the President as provided for under Article
VII, Section 17 of the 1987 Constitution, which reads:
Sec. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
However, as head of the Executive Department, the President cannot be expected to
exercise his control (and supervisory) powers personally all the time. He may delegate some
of his powers to the Cabinet members except when he is required by the Constitution to act
in person or the exigencies of the situation demand that he acts personally. 17
In Buklod ng Kawaning EIIB v. Zamora,18 this Court upheld the continuing authority of the
President to carry out the reorganization in any branch or agency of the executive
department. Such authority includes the creation, alteration or abolition of public offices. 19 The
Chief Executive’s authority to reorganize the National Government finds basis in Book III,
Section 20 of E.O. No. 292, otherwise known as the Administrative Code of 1987, viz:
Section 20. Residual Powers. – Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President which are provided for
under the laws and which are not specifically enumerated above or which are not delegated
by the President in accordance with law.
Further, in Larin v. Executive Secretary,20 this Court had occasion to rule:
This provision speaks of such other powers vested in the President under the law. What law
then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended
Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines
the continuing authority to reorganize the national government, which includes the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create
and classify functions, services and activities and to standardize salaries and materials. The
validity of these two decrees is unquestionable. The 1987 Constitution clearly provides that
"all laws, decrees, executive orders, proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall remain operative until amended,
repealed or revoked." So far, there is yet no law amending or repealing said decrees.
Applying the doctrine of qualified political agency, the power of the President to reorganize
the National Government may validly be delegated to his cabinet members exercising control
over a particular executive department. Thus, in DOTC Secretary v. Mabalot,21 we held that
the President – through his duly constituted political agent and alter ego, the DOTC Secretary
– may legally and validly decree the reorganization of the Department, particularly the
establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative
Region, with the concomitant transfer and performance of public functions and
responsibilities appurtenant to a regional office of the LTFRB.
Similarly, in the case at bar, the DENR Secretary can validly reorganize the DENR by
ordering the transfer of the DENR XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. The exercise of this authority by the DENR Secretary, as an alter ego, is
presumed to be the acts of the President for the latter had not expressly repudiated the
same.
The trial court should have taken judicial notice of R.A. No. 6734, as implemented by E.O.
No. 429, as legal basis of the President’s power to reorganize the executive department,
specifically those administrative regions which did not vote for their inclusion in the ARMM. It
is axiomatic that a court has the mandate to apply relevant statutes and jurisprudence in
determining whether the allegations in a complaint establish a cause of action. While it
focuses on the complaint, a court clearly cannot disregard decisions material to the proper
appreciation of the questions before it.22 In resolving the motion to dismiss, the trial court
should have taken cognizance of the official acts of the legislative, executive, and judicial
departments because they are proper subjects of mandatory judicial notice as provided by
Section 1 of Rule 129 of the Rules of Court, to wit:
A court shall take judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime courts of the world and their seals,
the political constitution and history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the laws of nature, the measure of
time, and the geographical divisions. (Emphasis supplied)
Article XIX, Section 13 of R.A. No. 6734 provides:
SECTION 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect
when approved by a majority of the votes cast by the constituent units provided in paragraph
(2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety
(90) days or later than one hundred twenty (120) days after the approval of this Act: Provided,
That only the provinces and cities voting favorably in such plebiscite shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do
not vote for inclusion in the Autonomous Region shall remain in the existing administrative
regions: Provided, however, That the President may, by administrative determination, merge
the existing regions.
Pursuant to the authority granted by the aforequoted provision, then President Corazon C.
Aquino issued on October 12, 1990 E.O. 429, "Providing for the Reorganization of the
Administrative Regions in Mindanao." Section 4 thereof provides:
SECTION 4. REGION XII, to be known as CENTRAL MINDANAO, shall include the following
provinces and cities:
Provinces
Sultan Kudarat
Cotabato
South Cotabato
Cities
Cotabato
General Santos
The Municipality of Koronadal (Marinduque) in South Cotabato shall serve as the
regional center.
In Chiongbian v. Orbos, this Court stressed the rule that the power of the President to
reorganize the administrative regions carries with it the power to determine the regional
centers. In identifying the regional centers, the President purposely intended the effective
delivery of the field services of government agencies.23 The same intention can be gleaned
from the preamble of the assailed DAO-99-14 which the DENR sought to achieve, that is, to
improve the efficiency and effectiveness of the DENR in delivering its services.
It may be true that the transfer of the offices may not be timely considering that: (1) there are
no buildings yet to house the regional offices in Koronadal, (2) the transfer falls on the month
of Ramadan, (3) the children of the affected employees are already enrolled in schools in
Cotabato City, (4) the Regional Development Council was not consulted, and (5) the
Sangguniang Panglungsond, through a resolution, requested the DENR Secretary to
reconsider the orders. However, these concern issues addressed to the wisdom of the
transfer rather than to its legality. It is basic in our form of government that the judiciary
cannot inquire into the wisdom or expediency of the acts of the executive or the legislative
department,24 for each department is supreme and independent of the others, and each is
devoid of authority not only to encroach upon the powers or field of action assigned to any of
the other department, but also to inquire into or pass upon the advisability or wisdom of the
acts performed, measures taken or decisions made by the other departments.25
The Supreme Court should not be thought of as having been tasked with the awesome
responsibility of overseeing the entire bureaucracy. Unless there is a clear showing of
constitutional infirmity or grave abuse of discretion amounting to lack or excess of jurisdiction,
the Court’s exercise of the judicial power, pervasive and limitless it may seem to be, still must
succumb to the paramount doctrine of separation of powers.26 After a careful review of the
records of the case, we find that this jurisprudential element of abuse of discretion has not
been shown to exist.1âwphi1
WHEREFORE, in view of the foregoing, the petition for review is GRANTED. The resolutions
of the Court of Appeals in CA-G.R. SP No. 58896 dated May 31, 2000 and August 20, 2001,
as well as the decision dated January 14, 2000 of the Regional Trial Court of Cotabato City,
Branch 15, in Civil Case No 389, are REVERSED and SET ASIDE. The permanent
injunction, which enjoined the petitioner from enforcing the Memorandum Order of the DENR
XII Regional Executive Director, is LIFTED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 181293 February 23, 2015
ANA THERESIA "RISA" HONTIVEROS-BARAQUEL, DANIEL L. EDRALIN, VICTOR M.
GONZALES, SR., JOSE APOLLO R. ADO, RENE D. SORIANO, ALLIANCE OF
PROGRESSIVE LABOR, BUKLURAN NG MANGGAGAWANG PILIPINO, LAHING
PILIPINO MULTIPURPOSE TRANSPORT SERVICE COOPERATIVE, PNCC SKYWAY
CORPORATION EMPLOYEES UNION (PSCEU), and PNCC TRAFFIC MANAGEMENT &
SECURITY DEPARTMENT WORKERS ORGANIZATION (PTMSDWO), Petitioners,
vs.
TOLL REGULATORY BOARD, THE SECRETARY OF THE DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC), PNCC SKYWAY CORPORATION,
PHILIPPINE NATIONAL CONSTRUCTION CORPORATION, SKYWAY O & M
CORPORATION, and CITRA METRO MANILA TOLLWAYS CORP.,Respondents.
DECISION
SERENO, CJ:
This is an original petition for certiorari and prohibition under Rule 65 of the Rules of Court,
with a prayer for the issuance of a writ of preliminary injunction and/or temporary restraining
order, seeking the annulment of the following:
1. The Amendment to the Supplemental Toll Operation Agreement executed on 18
July 2007 between the Republic of the Philippines, the Philippine National
Construction Corporation, and Citra Metro Manila Tollways Corporation;
2. The Memorandum dated 20 July 2007 of the Secretary of Transportation and
Communications, approving the Amendment to the Supplemental Toll Operation
Agreement;
3. The Memorandum of Agreement executed on 21 December 2007 between the
Philippine National Construction Corporation, PNCC Skyway Corporation, and Citra
Metro Manila Tollways Corporation; and
4. The Toll Operation Certificate issued by the Toll Regulatory Board on 28
December 2007 in favor of Skyway O & M Corporation.
The annulment of the above is sought for being unconstitutional, contrary to law, and grossly
disadvantageous to the government. Petitioners also seek to prohibit Skyway O & M
Corporation from assuming operations and maintenance responsibilities over the Skyway toll
facilities. ANTECEDENT FACTS
The Toll Regulatory Board (TRB) was created on 31 March 1977 by Presidential Decree No.
(P.D.) 11121 in order to supervise and regulate, on behalf of the government, the collection of
toll fees and the operation of toll facilities by the private sector.
On the same date, P.D. 11132 was issued granting to the Construction and Development
Corporation of the Philippines (now Philippine National Construction Corporation or PNCC)
the right, privilege, and authority to construct, operate, and maintain toll facilities in the North
and South Luzon Toll Expressways for a period of 30 years starting 1 May1977.
TRB and PNCC later entered into a Toll Operation Agreement,3 which prescribed the
operating conditions of the right granted to PNCC under P.D. 1113.
P.D. 1113 was amended by P.D. 1894,4 which granted PNCC the right, privilege, and
authority to construct, maintain, and operate the North Luzon, South Luzon and Metro Manila
Expressways, together with the toll facilities appurtenant thereto. The term of 30 years
provided under P. D. 1113 starting from 1 May 1977 remained the same for the North and the
South Luzon Expressways, while the franchise granted for the Metro Manila Expressway
(MME) provided a term of 30 years commencing from the date of completion of the project.
On 22 September 1993, PNCC entered into an agreement5 with PT Citra Lamtoro Gung
Persada (CITRA), a limited liability company organized and established under the laws of the
Republic of Indonesia, whereby the latter committed to provide PNCC with a pre-feasibility
study on the proposed MME project. The agreement was supplemented6 on 14 February
1994 with a related undertaking on the part of CITRA. CITRA was to provide a preliminary
feasibility study on the Metro Manila Skyways (MMS) project, a system of elevated roadway
networks passing through the heart of the Metropolitan Manila area. In order to accelerate the
actual implementation of both the MME and the MMS projects, PNCC and CITRA entered
into a second agreement.7 Through that agreement, CITRA committed to finance and
undertake the preparation, updating, and revalidation of previous studies on the construction,
operation, and maintenance of the projects.
As a result of the feasibility and related studies, PNCC and CITRA submitted, through the
TRB, a Joint Investment Proposal (JIP) to the Republic of the Philippines. 8 The JIP embodied
the implementation schedule for the financing, design and construction of the MMS in three
stages: the South Metro Manila Skyway, the North Metro Manila Skyway, and the Central
Metro Manila Skyway.9
The TRB reviewed, evaluated and approved the JIP, particularly as it related to Stage 1,
Phases 1 and 2; and Stage 2, Phase 1 of the South Metro Manila Skyway.
On 30 August 1995, PNCC and CITRA entered into a Business and Joint Venture
Agreement10 and created the Citra Metro Manila Tollways Corporation (CMMTC). CMMTC
was a joint venture corporation organized under Philippine laws to serve as a channel
through which CITRA shall participate in the construction and development of the project.
On 27 November 1995, the Republic of the Philippines - through the TRB - as Grantor,
CMMTC as Investor, and PNCC as Operator executed a Supplemental Toll Operation
Agreement (STOA)11 covering Stage 1, Phases 1 and 2; and Stage 2, Phase 1 of the South
Metro Manila Skyway. Under the STOA, the design and construction of the project roads
became the primary and exclusive privilege and responsibility of CMMTC. The operation and
maintenance of the project roads became the primary and exclusive privilege and
responsibility of the PNCC Skyway Corporation (PSC), a wholly owned subsidiary of PNCC,
which undertook and performed the latter's obligations under the STOA.
CMMTC completed the design and construction of Stage 1 of the South Metro Manila
Skyway, which was operated and maintained by PSC.12
On 18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC
executed the assailed Amendment to the Supplemental Toll Operation Agreement
(ASTOA).13 The ASTOA incorporated the amendments, revisions, and modifications
necessary to cover the design and construction of Stage 2 of the South Metro Manila
Skyway. Also under the ASTOA, Skyway 0 & M Corporation (SOMCO) replaced PSC in
performing the operations and maintenance of Stage 1 of the South Metro Manila Skyway.
Pursuant to the authority granted to him under Executive Order No. (E.O.) 49714 dated 24
January 2006, Department of Transportation and Communications (DOTC) Secretary
Leandro Mendoza approved the ASTOA through the challenged Memorandum dated 20 July
2007.15
On 21 December 2007, PNCC, PSC, and CMMTC entered into the assailed Memorandum of
Agreement (MOA)16providing for the successful and seamless assumption by SOMCO of the
operations and maintenance of Stage 1 of the South Metro Manila Skyway. Under the MOA,
PSC received the amount of ₱320 million which was used for the settlement of its liabilities
arising from the consequent retrenchment or separation of its affected employees.
The TRB issued the challenged Toll Operation Certificate (TOC) 17 to SOM CO on 28
December 2007, authorizing the latter to operate and maintain Stage 1 of the South Metro
Manila Skyway effective 10:00 p.m. on 31December2007.
Meanwhile, on 28 December 2007, petitioner PNCC Traffic Management and Security
Department Workers Organization (PTMSDWO) filed a Notice of Strike against PSC on the
ground of unfair labor practice, specifically union busting.18 The Secretary of Labor and
Employment19 assumed jurisdiction over the dispute in an Order dated 31 December 2007
and set the initial hearing of the case on 2 January 2008.20
On 3 January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees
Union (PSCEU) filed before the Regional Trial Court of Parañaque City, Branch 258 (RTC), a
complaint against respondents TRB, PNCC, PSC, CMMTC, and SOMCO. The complaint was
for injunction and prohibition with a prayer for a writ of preliminary injunction and/or a
temporary restraining order, and sought to prohibit the implementation of the AS TOA and the
MOA, as well as the assumption of the toll operations by SOMCO.21 Petitioners PSCEU and
PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for being
contrary to law and for being grossly disadvantageous to the government. 22 They later filed
an Amended Complaint23 dated 8 January 2008, additionally praying that PSC be allowed to
continue the toll operations. With the exception of TRB, all defendants therein filed their
Opposition.
On 23 January 2008, the RTC issued an Order24 denying the prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction. According to the RTC,
petitioners were seeking to enjoin a national government infrastructure project. Under
Republic Act No. (R.A.) 8975,25 lower courts are prohibited from issuing a temporary
restraining order or preliminary injunction against the government - or any person or entity
acting under the government's direction - to restrain the execution, implementation, or
operation of any such contract or project. Furthermore, the RTC ruled that it could no longer
issue a temporary restraining order or preliminary injunction, considering that the act sought
to be restrained had already been consummated.26 The AS TOA, the MOA, and the
assumption of the toll operations by SOMCO took effect at 10:00 p.m. on 31 December 2007,
while petitioners PSCEU and PTMSDWO sought to prohibit their implementation only on 3
January 2008.
In view of its denial of the ancillary prayer, the RTC required defendants to file their
respective Answers to the Amended Complaint.27
On 28 January 2008, petitioners PSCEU and PTMSDWO filed a Notice of Dismissal with
Urgent Ex-Parte Motion for the Issuance of Order Confirming the Dismissal,28 considering
that no Answers had yet been filed. On the basis thereof, the R TC dismissed the case
without prejudice on 29 January 2008.29
On 4 February 2008, petitioners filed the instant Petition30 before this Court. On 13 February
2008, we required respondents to comment on the same.31
Meanwhile, defendants PNCC32 and PSC33 filed their respective Motions for Partial
Reconsideration of the Order of the R TC dismissing the case without prejudice. Both argued
that the RTC should have dismissed the case with prejudice. They pointed out that petitioners
PSCEU and PTMSDWO had acted in bad faith by filing the complaint before the RTC,
despite the pendency of a labor case over which the Secretary of Labor and Employment had
assumed jurisdiction. Defendant CMMTC joined PNCC and PSC in moving for a partial
reconsideration of the RTC Order.34
The RTC denied the Motions for Partial Reconsideration in an Order dated 13 June 2008.35
Before this Court, SOMCO,36 PSC,37 PNCC,38 CMMTC,39 and TRB40 filed their respective
Comments on the Petition.
THE PARTIES' POSITIONS
Petitioners argue that the franchise for toll operations was exclusively vested by P.D. 1113 in
PNCC, which exercised the powers under its franchise through PSC in accordance with the
STOA. By agreeing to the arrangement whereby SOMCO would replace PSC in the toll
operations and management, PNCC seriously breached the terms and conditions of its
undertaking under the franchise and effectively abdicated its rights and privileges in favor of
SOMCO.
Furthermore, the TOC granted to SOMCO was highly irregular and contrary to law, because
1) it did not indicate the conditions that shall be imposed on SOMCO as provided under P.D.
1112;41 2) none of the requirements on public bidding, negotiations, or even publication was
complied with before the issuance of the TOC to SOMCO; 3) applying the stricter
"grandfather rule," SOMCO does not qualify as a facility operator as defined under R.A.
6957,42 as amended by R.A. 7718;43 and 4) there were no public notices and hearings
conducted wherein all legitimate issues and concerns about the transfer of the toll operations
would have been properly ventilated.
Petitioners also claim that the approval by the DOTC Secretary of the AS TOA could not take
the place of the presidential approval required under P.D. 111344 and P.D. 189445 concerning
the franchise granted to PNCC.
Finally, petitioners claim that the assumption of the toll operations by SOM CO was grossly
disadvantageous to the government, because 1) for a measly capital investment of ₱2.5
million, SOMCO stands to earn ₱400 million in gross revenues based on official and historical
records; 2) with its measly capital, SOMCO would not be able to cover the direct overhead for
personal services in the amount of ₱226 million as borne out by Commission on Audit
reports; 3) the net revenue from toll operations would go to private shareholders of SOMCO,
whereas all earnings of PSC when it was still in charge of the toll operations went to PNCC -
the mother company whose earnings, as an "acquired-asset corporation," formed part of the
public treasury; 4) the new arrangement would result in the poor delivery of toll services by
SOMCO, which had no proven track record; 5) PSC received only ₱320 million as settlement
for the transfer of toll operations to SOMCO.
All respondents counter that petitioners do not have the requisite legal standing to file the
petition. According to respondents, petitioner Hontiveros-Baraquel filed the instant petition as
a legislator in her capacity as party-list representative of Akbayan. As such, she was only
allowed to sue to question the validity of any official action when it infringed on her
prerogative as a legislator.46 Presently, she has cited no such prerogative, power, or privilege
that is adversely affected by the assailed acts.47
While suing as citizens, the individual petitioners have not shown any personal or substantial
interest in the case indicating that they sustained or will sustain direct injury as a result of the
implementation of the assailed acts.48 The maintenance of the suit by petitioners as
taxpayers has no merit either because the assailed acts do not involve the disbursement of
public funds.49 Finally, the bringing of the suit by petitioners as people's organizations does
not automatically confer legal standing, especially since petitioner-organizations do not even
allege that they represent their members,50 nor do they cite any particular constitutional
provision that has been violated or disregarded by the assailed acts.51 In fact, the suit raises
only issues of contract law, and none of the petitioners is a party or is privy to the assailed
agreements and issuances.52
Respondents also argue that petitioners violate the hierarchy of courts. In particular, it is
alleged that while lower courts are prohibited from issuing temporary restraining orders or
preliminary injunctions against national government projects under R.A. 8975, the law does
not preclude them from assuming jurisdiction over complaints that seek the nullification of a
national government project as ultimate relief.53
As a final procedural challenge to the petition, respondents aver that petitioners are guilty of
forum shopping. When petitioners filed the instant petition, the case before the R TC seeking
similar reliefs was still pending, as respondents PNCC, PSC and CMMTC had moved for the
partial reconsideration of the RTC's Order of dismissal within the reglementary
period.54 Furthermore, the instant case and the one before the RTC were filed while
petitioners' labor grievances seeking similar reliefs were also being heard before the
Department of Labor and Employment.55
On the merits of the arguments in the petition, respondents argue that nothing in the ASTOA,
the approval thereof by the DOTC Secretary, the MOA, or the TOC was violative of the
Constitution. It is argued that the authority to operate a public utility can be granted by
administrative agencies when authorized by law.56 Under P.D. 1112, the TRB is empowered
to grant authority and enter into contracts for the construction, operation, and maintenance of
a toll facility,57 such as the ASTOA in this case. Also, the ASTOA was an amendment, not to
the legislative franchise of PNCC, but to the STOA previously executed between the Republic
of the Philippines through the TRB, PNCC, and CMMTC.58 In fact, PNCC's franchise was
never sold, transferred, or otherwise assigned to SOMCO59 in the same way that PSC's
previous assumption of the operation and maintenance of the South Metro Manila Skyway
did not amount to a sale, transfer or assignment of PNCC's franchise.60
There can be no valid objection to the approval of the ASTOA by the DOTC Secretary,
because he was authorized by the President to do so by virtue of E.O. 497. 61 Also, the
phrase "subject to the approval of the President of the Philippines" in P.D. 1112 and 1113
does not in any way mean that the presidential approval must be obtained prior to the
execution of a contract, or that the approval be made personally by the President. 62 The
presidential approval may be obtained under the doctrine of qualified political agency. 63
Respondents argue that there is no merit in the claim that the TOC granted to SOMCO was
highly irregular and contrary to law. First, the TOC clearly states that the toll operation and
maintenance by SOMCO shall be regulated by the Republic of the Philippines in accordance
with P.D. 1112, the STOA, the toll operations and maintenance rules and regulations, and
lawful orders, instructions, and conditions that may be imposed from time to time. 64Second,
there is no need to comply with the public bidding and negotiation requirements, because the
South Metro Manila Skyway is an ongoing project, not a new one.65 Furthermore, the STOA,
which was the basis for the ASTOA, was concluded way before the effectivity of R.A.
918466 in 2003.67
Third, SOMCO is a Filipino corporation with substantial 72% Filipino ownership. 68 Fourth, the
law requires prior notice and hearing only in an administrative body's exercise of quasi-
judicial functions.69 In this case, the transfer of the toll operations and maintenance to SOM
CO was a contractual arrangement entered into in accordance with law. 70
Finally, the assumption of the toll operation and maintenance by SOMCO is not
disadvantageous to the government. Petitioners belittle the ₱2.5 million capitalization of
SOMCO, considering that PSC's capitalization at the time it was incorporated was merely
₱500,000.71
Respondents claim that under the ASTOA, PNCC shall get a direct share in the toll revenues
without any corollary obligation, unlike the arrangement in the STOA whereby PNCC's 10%
share in the toll revenues was intended primarily for the toll operation and maintenance by
PSC.72
Finally, respondents assert that there is no reason to fear that the assumption by SOMCO
would result in poor delivery of toll services. CITRA and the other shareholders of SOMCO
are entities with experience and proven track record in toll operations.73 Also, SOM CO hired
or absorbed more than 300 PSC employees,74 who brought with them their work expertise
and experience.
ISSUES
The instant case shall be resolved on the basis of the following issues:
Procedural:
I. Whether petitioners have standing;
II. Whether petitioners are guilty of forum-shopping;
Substantive:
III. Whether the TRB has the power to grant authority to operate a toll facility;
IV. Whether the TOC issued to SOMCO was valid;
V. Whether the approval of the ASTOA by the DOTC Secretary was valid; and
VI. Whether the assumption of toll operations by SOMCO is disadvantageous to the
government.
OUR RULING
I
Not all petitioners have personality to sue.
Standing is a constitutional law concept allowing suits to be brought not necessarily by
parties personally injured by the operation of a law or official action, but by concerned
citizens, taxpayers, or voters who sue in the public interest.75 Determining the standing of
concerned citizens, taxpayers, or voters requires a partial consideration of the substantive
merit of the constitutional question,76 or at least a preliminary estimate thereof.77
In this case, petitioners raise the power of Congress to grant franchises as a constitutional
question. They allege that the execution of the ASTOA and the MOA, the approval of the AS
TOA by the DOTC Secretary and the issuance of the TOC infringed on the constitutional
power of Congress, which has the sole authority to grant franchises for the operation of public
utilities. This Court has had a few occasions to rule that a franchise from Congress is not
required before each and every public utility may operate.78 Unless there is a law that
specifically requires a franchise for the operation of a public utility, particular agencies in the
executive branch may issue authorizations and licenses for the operation of certain classes of
public utilities.79 In the instant case, there is no law that states that a legislative franchise is
necessary for the operation of toll facilities.
In PAL v. Civil Aeronautics Board,80 this Court enunciated:
Congress has granted certain administrative agencies the power to grant licenses for, or to
authorize the operation of certain public utilities. With the growing complexity of modem life,
the multiplication of the subjects of governmental regulation, and the increased difficulty of
administering the laws, there is a constantly growing tendency towards the delegation of
greater powers by the legislature, and towards the approval of the practice by the courts. It is
generally recognized that a franchise may be derived indirectly from the state through a duly
designated agency, and to this extent, the power to grant franchises has frequently been
delegated, even to agencies other than those of a legislative nature. In pursuance of this, it
has been held that privileges conferred by grant by local authorities as agents for the state
constitute as much a legislative franchise as though the grant had been made by an act of
the Legislature.81
It is thus clear that Congress does not have the sole authority to grant franchises for the
operation of public utilities. Considering the foregoing, we find that the petition raises no issue
of constitutional import. More particularly, no legislative prerogative, power, or privilege has
been impaired. Hence, legislators have no standing to file the instant petition, for they are
only allowed to sue to question the validity of any official action when it infringes on their
prerogatives as members of Congress.82 Standing is accorded to them only if there is an
unmistakable showing that the challenged official act affects or impairs their rights and
prerogatives as legislators.83
In line with our ruling in Kilosbayan, Inc. v. Morato,84 the rule concerning a real party in
interest - which is applicable to private litigation – rather than the liberal rule on standing,
should be applied to petitioners.
A real party in interest is one who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit.85 One's interest must be personal and not
one based on a desire to vindicate the constitutional right of some third and unrelated
party.86 The purposes of the rule are to prevent the prosecution of actions by persons without
any right or title to or interest in the case; to require that the actual party entitled to legal relief
be the one to prosecute the action; to avoid a multiplicity of suits; and to discourage litigation
and keep it within certain bounds, pursuant to sound public policy. 87
At bottom, what is being questioned in the petition is the relinquishment by PSC of the toll
operations in favor of SOMCO, effectively leading to the cessation of the former' s business.
In this case, we find that among petitioners, the only real parties in interest are the labor
unions PSCEU and PTMSDWO.
PSCEU and PTMSDWO filed the petition not as a representative suit on behalf of their
members who are rank-and-file employees of PSC, but as people's organizations "invested
with a public duty to defend the rule of law."88PSCEU and PTMSDWO cite Kilosbayan v.
Ermita89 as authority to support their standing to file the instant suit.
It is well to point out that the Court, in Ermita, accorded standing to people's organizations to
file the suit, because the matter involved therein was the qualification of a person to be
appointed as a member of this Court -"an issue of utmost and far-reaching constitutional
importance."90 As discussed, the instant petition raises no genuine constitutional issues.
Nevertheless, for a different reason, we accord standing to PSCEU and PTMSDWO to file
the instant suit. With the transfer of toll operations to SOMCO and the resulting cessation of
PSC's business comes the retrenchment and separation of all its employees. The existence
of petitioner labor unions would terminate with the dissolution of its employer and the
separation of its members. This is why the petition also prays that this Court issue an order
"that would smoothly preserve the toll operations services of respondent PNCC and/or
respondent PSC under its legislative franchise."91
We have recognized that the right of self-preservation is inherent in every labor union or any
organization for that matter.92 Thus, PSCEU and PTMSDWO, as real parties in interest, have
the personality to question the assumption of the toll operations by SOMCO.
II
PSCEU and PTMSDWO are not guilty of forum-shopping.
Forum shopping refers to the act of availing of several remedies in different courts and/or
administrative agencies, either simultaneously or successively, when these remedies are
substantially founded on the same material facts and circumstances and raise basically the
same issues either pending in or already resolved by some other court or administrative
agency.93 What is pivotal in determining whether forum shopping exists is the vexation
caused to the courts and litigants and the possibility of conflicting decisions being rendered
by different courts and/or administrative agencies upon the same issues. 94
The elements of forum shopping are as follows: a) identity of parties or at least such parties
that represent the same interests in both actions; b) identity of rights asserted and the relief
prayed for, the relief founded on the same facts; and c) identity of the two preceding
particulars, such that any judgment rendered in one action will amount to res judicata in the
other.95 Respondents argue that petitioners PSCEU and PTMSDWO committed forum
shopping by filing the complaint for injunction and prohibition before the RTC during the
pendency of NCMB-NCR-NS-12-188-07 entitled In Re: Labor Dispute at PNCC Skyway
Corporation. It was a case they also filed, over which the Secretary of Labor and Employment
has assumed jurisdiction.
The case involves a Notice of Strike filed against PSC on the ground of unfair labor practice.
While the specific act in question is not specified, the prohibited acts constituting unfair labor
practice96 essentially relate to violations concerning the workers' right to self-
organization.97 When compared with the complaint filed with the RTC for injunction and
prohibition seeking to prohibit the implementation of the ASTOA and the MOA, as well as the
assumption of the toll operations by SOM CO for being unconstitutional, contrary to law and
disadvantageous to the government, it is easily discernible that there is no identity of rights
asserted and relief prayed for. These cases are distinct and dissimilar in their nature and
character.
For the sake of argument, let us assume that, in order to hurt the unions, PSC feigned a
cessation of business that led to the retrenchment and separation of all employees. That is
an unfair labor practice. In that complaint, the unions cannot be expected to ask for, or the
Secretary of Labor and Employment to grant, the annulment of the ASTOA and the MOA and
the continuation of toll operations by PSC. The Secretary would only focus on the legality of
the retrenchment and separation, and on the presence or absence of bad faith in PSC's
cessation of business. On the other hand, the complaint before the RTC would require it to
focus on the legality of the ASTOA, the MOA and the transfer of toll operations. Ultimately,
even if the Secretary of Labor and Employment makes a finding of unfair labor practice, this
determination would not amount to res judicata as regards the case before the RTC.
We also reject the claim of respondents that petitioners PSCEU and PTMSDWO committed
forum shopping by filing the instant petition before this Court while the motion for partial
reconsideration of the RTC's Order of dismissal without prejudice was still pending. Section 1,
Rule 17 of the Rules of Court states:
SECTION 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of a motion
for summary judgment. Upon such notice being filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except
that a notice operates as an adjudication upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action based on or including the same claim.
In this case, petitioners PSCEU and PTMSDWO had filed a notice of dismissal of the
complaint before the RTC on 28 January 2008, before respondents filed their Answers. The
following day, the RTC issued an order confirming the dismissal. Under the above-cited rule,
this confirmation is the only qualification imposed on the right of a party to dismiss the action
before the adverse party files an answer.98 In this case, the dismissal of the action therefore
became effective upon that confirmation by the RTC despite the subsequent filing of the
motions for partial reconsideration.
Thus, when the instant petition was filed on 4 February 2008, the complaint before the RTC
was no longer pending. The complaint was dismissed without prejudice by virtue of the notice
of dismissal filed by petitioners PSCEU and PTMSDWO. Consequently, there was not even
any need for petitioners to mention the prior filing and dismissal of the complaint in the
certificate of non-forum shopping in the instant petition,99 but they did so anyway.100
Parenthetically, in their motions for partial reconsideration, respondents PNCC and PSC
insisted that the dismissal should have been with prejudice, because petitioners allegedly
acted in bad faith in filing the notice of dismissal, were guilty of forum shopping, and did not
notify respondents of their intention to file a notice of dismissal. With regard to the first and
the third allegation, petitioners may ask for dismissal at any time before the filing of the
answer as a matter of right, even if the notice cites "the most ridiculous of grounds for
dismissal."101 As to the second, we have already ruled that there was no forum shopping as
regards the successive filings of the labor case and the complaint before the RTC.
II
TRB has the power to grant authority to operate a toll facility.
This matter has already been settled by the Court in Francisco, Jr. v. TRB, 102 which ruled
thus:
It is abundantly clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D.
1894 have invested the TRB with sufficient power to grant a qualified person or entity with
authority to construct, maintain, and operate a toll facility and to issue the corresponding toll
operating permit or TOC.
Sections 3 (a) and (e) of P.D. 1112 and Section 4 of P.D. 1894 amply provide the power to
grant authority to operate toll facilities:
Section 3. Powers and Duties of the Board. - The Board shall have in addition to its general
powers of administration the following powers and duties:
(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf
of the Republic of the Philippines with persons, natural or juridical, for the construction,
operation and maintenance of toll facilities such as but not limited to national highways,
roads, bridges, and public thoroughfares. Said contract shall be open to citizens of the
Philippines and/or to corporations or associations qualified under the Constitution and
authorized by law to engage in toll operations;
xxxx
(e) To grant authority to operate a toll facility and to issue therefore the necessary "Toll
Operation Certificate" subject to such conditions as shall be imposed by the Board including
inter alia the following:
(1) That the Operator shall desist from collecting toll upon the expiration of the Toll
Operation Certificate.
(2) That the entire facility operated as a toll system including all operation and
maintenance equipment directly related thereto shall be turned over to the
government immediately upon the expiration of the Toll Operation Certificate.
(3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign
the rights or privileges acquired under the Toll Operation Certificate to any person,
firm, company, corporation or other commercial or legal entity, nor merge with any
other company or corporation organized for the same purpose, without the prior
approval of the President of the Philippines. In the event of any valid transfer of the
Toll Operation Certificate, the Transferee shall be subject to all the conditions, terms,
restrictions and limitations of this Decree as fully and completely and to the same
extent as if the Toll Operation Certificate has been granted to the same person, firm,
company, corporation or other commercial or legal entity.
(4) That in time of war, rebellion, public peril, emergency, calamity, disaster or
disturbance of peace and order, the President of the Philippines may cause the total
or partial closing of the toll facility or order to take over thereof by the Government
without prejudice to the payment of just compensation.
 (5) That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds
shall be issued by any government agency or government-owned or controlled
corporation on any financing program of the toll operator in connection with his
undertaking under the Toll Operation Certificate.
(6) The Toll Operation Certificate may be amended, modified or revoked whenever
the public interest so requires.
(a) The Board shall promulgate rules and regulations governing the
procedures for the grant of Toll Certificates. The rights and privileges of a
grantee under a Toll Operation Certificate shall be defined by the Board.
(b) To issue rules and regulations to carry out the purposes of this Decree.
SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision over the
GRANTEE with respect to the Expressways, the toll facilities necessarily appurtenant thereto
and, subject to the provisions of Section 8 and 9 hereof, the toll that the GRANTEE will
charge the users thereof.
By explicit provision of law, the TRB was given the power to grant administrative franchise for
toll facility projects.103(Emphases supplied)
We cannot abide by the contention of petitioners that the franchise for toll operations was
exclusively vested in PNCC, which effectively breached its franchise when it transferred the
toll operations to SOMCO. First, there is nothing in P.D. 1113 or P.D. 1894 that states that
the franchise granted to PNCC is to the exclusion of all others.
Second, if we were to go by the theory of petitioners, it is only the operation and maintenance
of the toll facilities that is vested with PNCC. This interpretation is contrary to the wording of
P.D. 1113 and P.D. 1894 g ranting PNCC the right, privilege and authority to construct,
operate and maintain the North Luzon, South Luzon and Metro Manila Expressways and their
toll facilities.
It appears that petitioners have confused the franchise granted under P.D. 1113 and P.D.
1894 with particular provisions in the STOA. To clarify, the operation and maintenance of the
project roads were the primary and exclusive privilege and responsibility of PNCC through
PSC under the STOA. On the other hand, the design and construction of the project roads
were the primary and exclusive privilege and responsibility of CMMTC. However, with the
execution of the AS TOA, the parties agreed that SOM CO shall replace PSC in undertaking
the operations and maintenance of the project roads. Thus, the "exclusivity clause" was a
matter of agreement between the parties, which amended it in a later contract; it was not a
matter provided under the law.
Third, aside from having been granted the power to grant administrative franchises for toll
facility projects, TRB is also empowered to modify, amend, and impose additional conditions
on the franchise of PNCC in an appropriate contract, particularly when public interest calls for
it. This is provided under Section 3 of P.D. 1113 and Section 6 of P.D. 1894, to wit:
SECTION 3. This franchise is granted subject to such conditions as may be imposed by the
[Toll Regulatory] Board in an appropriate contract to be executed for this purpose, and with
the understanding and upon the condition that it shall be subject to amendment, alteration or
repeal when public interest so requires.
xxx
SECTION 6. This franchise is granted subject to such conditions, consistent with the
provisions of this Decree, as may be imposed by the Toll Regulatory Board in the Toll
Operation Agreement and such other modifications or amendments that may be made
thereto, and with the understanding and upon the condition that it shall be subject to
amendment or alteration when public interest so dictates.
Section 6 of P.D. 1894 specifically mentions the Toll Operation Agreement. The STOA was
one such modification or amendment of the franchise of PNCC. So was the ASTOA, which
further modified the franchise. PNCC cannot be said to have breached its franchise when it
transferred the toll operations to SOMCO. PNCC remained the franchise holder for the
construction, operation, and maintenance of the project roads; it only opted to partner with
investors in the exercise of its franchise leading to the organization of companies such as
PSC and SOMCO.
Again, considering that PNCC was granted the right, privilege, and authority to construct,
operate, and maintain the North Luzon, South Luzon, and Metro Manila Expressways and
their toll facilities, we have not heard petitioners decrying the "breach" by PNCC of its
franchise when it agreed to make CMMTC responsible for the design and construction of the
project roads under the STOA.
IV
The TOC issued to SOMCO was not irregular.
Petitioners argue that the conditions provided under Section 3(e) of P.D. 1112104 were not
imposed on SOMCO, because these do not appear on the face of the TOC. Petitioners are
mistaken.
The TOC, as a grant of authority from the government, is subject to the latter's control insofar
as the grant affects or concerns the public.105 Like all other franchises or licenses issued by
the government, the TOC is issued subject to terms, conditions, and limitations under existing
laws and agreements. This rule especially holds true in this instance since the TRB has the
power to issue "the necessary 'Toll Operation Certificate' subject to such conditions as shall
be imposed by the Board including inter alia" those specified under Section 3(e) of P.D. 1112.
Thus, impliedly written into every TOC are the conditions prescribed therein.
In any case, part of the TOC issued to SOMCO reads:
Pursuant to Section 3(e) of Presidential Decree No. 1112 or the Toll Operation Decree,
Skyway O & M Corporation is hereby given authority to operate and maintain Stage 1 of the
South Metro Manila Skyway effective as of 10:00 p.m. of 31 December 2007.
This authorization is issued upon the clear understanding that the operation and maintenance
of Stage 1 of the South Metro Manila Skyway as a toll facility and the collection of toll fees
shall be closely supervised and regulated by the Grantor, by and through the Board of
Directors, in accordance with the terms and conditions set forth in the STOA, as amended,
the rules and regulations duly promulgated by the Grantor for toll road operations and
maintenance, as well as the lawful orders, instructions and conditions which the Grantor,
through the TRB, may impose from time to time in view of the public nature of the facility.
As regards the allegation that none of the requirements for public bidding was observed
before the TOC was issued to SOMCO, this matter was also squarely answered by the Court
in Francisco, Jr. v. TRB,106 to wit:
Where, in the instant case, a franchisee undertakes the tollway projects of construction,
rehabilitation and expansion of the tollways under its franchise, there is no need for a public
bidding. In pursuing the projects with the vast resource requirements, the franchisee can
partner with other investors, which it may choose in the exercise of its management
prerogatives. In this case, no public bidding is required upon the franchisee in choosing its
partners as such process was done in the exercise of management prerogatives and in
pursuit of its right of delectus personae. Thus, the subject tollway projects were undertaken
by companies, which are the product of the joint ventures between PNCC and its chosen
partners.107
Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the South
Metro Manila Skyway. The STOA gave birth to PSC, which was put in charge of the operation
and maintenance of the project roads. The ASTOA had to be executed for Stage 2 to
accommodate changes and modifications in the original design. The ASTOA then brought
forth the incorporation of SOMCO to replace PSC in the operations and maintenance of
Stage 1 of the South Metro Manila Skyway. Clearly, no public bidding was necessary
because PNCC, the franchisee, merely exercised its management prerogative when it
decided to undertake the construction, operation, and maintenance of the project roads
through companies which are products of joint ventures with chosen partners.
Petitioners also insist that SOMCO is not qualified to operate a toll facility, because it does
not meet the nationality requirement for a corporation when scrutinized under the
"grandfather rule." Other than advancing this argument, however, petitioners have not shown
how SOMCO fails to meet the nationality requirement for a public utility operator. Petitioners
only aver in their petition that 40% of SOMCO is owned by CMMTC, a foreign company,
while the rest is owned by the following: a) Toll Road Operation and Maintenance Venture
Corporation (TROMVC), almost 40% of which is owned by a Singaporean company; b) Asset
values Holding Company, Inc. (AHCI), of which almost 40% is Dutch-owned; and c) Metro
Strategic Infrastructure Holdings, Inc. (MSIHI), 40% of which is owned by Metro Pacific
Corporation, whose ownership or nationality was not specified.108
Section 11, Article XII of the Constitution provides that "[n]o franchise, certificate, or any other
form of authorization for the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under the laws of the Philippines
at least sixty per centum of whose capital is owned by such citizens x x x." Clearly, under the
Constitution, a corporation at least 60% of whose capital is owned by Filipinos is of Philippine
nationality. Considering this constitutional provision, petitioners' silence on the ownership of
the remaining 60% of the corporations cited is very telling.
In order to rebut petitioners' allegations, respondents readily present matrices showing the
itemization of percentage ownerships of the subscribed capital stock of SOMCO, as well as
that of TROMVC, AHCI, and MSIHI. Respondents attempt to show that all these corporations
are of Philippine nationality, with 60% of their capital stock owned by Filipino citizens. We
need not reproduce the itemization here. Suffice it to say that in their Consolidated
Reply,109petitioners did not refute the unanimous claim of respondents. It is axiomatic that
one who alleges a fact has the burden of proving it. On this matter, we find that petitioners
have failed to prove their allegation that SOMCO is not qualified to operate a toll facility for
failure to meet the nationality requirement under the Constitution.
Finally, no public notices and hearings were necessary prior to the issuance of the TOC to
SOMCO. For the same reason that a public bidding is not necessary, PNCC cannot be
required to call for public hearings concerning matters within its prerogative. At any rate, we
have studied P.D. 1112 and the Implementing Rules and Regulations Authorizing the
Establishment of Toll Facilities and found no provision requiring the issuance of public notices
and the conduct of public hearings prior to the issuance of a TOC.
V
Approval of the AS TOA by the DOTC Secretary was approval by the President.
The doctrine of qualified political agency declares that, save in matters on which the
Constitution or the circumstances require the President to act personally, executive and
administrative functions are exercised through executive departments headed by cabinet
secretaries, whose acts are presumptively the acts of the President unless disapproved by
the latter.110 As explained in Villena v. Executive Secretary, 111 this doctrine is rooted in the
Constitution:
x x x With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight, and
that is, the establishment of a single, not plural, Executive. The first section of Article VII of
the Constitution, dealing with the Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President of the Philippines." This
means that the President of the Philippines is the Executive of the Government of the
Philippines, and no other. The heads of the executive departments occupy political positions
and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should be
of the President's bosom confidence," and, in the language of Attorney-General Cushing, "are
subject to the direction of the President." Without minimizing the importance of the heads of
the various departments, their personality is in reality but the projection of that of the
President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the
Supreme Court of the United States, "each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is required by law
to exercise authority." Secretaries of departments, of course, exercise certain powers under
the law but the law cannot impair or in any way affect the constitutional power of control and
direction of the President. As a matter of executive policy, they may be granted departmental
autonomy as to certain matters but this is by mere concession of the executive, in the
absence of valid legislation in the particular field. If the President, then, is the authority in the
Executive Department, he assumes the corresponding responsibility. The head of a
department is a man of his confidence; he controls and directs his acts; he appoints him and
can remove him at pleasure; he is the executive, not any of his secretaries. 112 x x x (Citations
omitted)
Applying the doctrine of qualified political agency, we have ruled that the Secretary of
Environment and Natural Resources can validly order the transfer of a regional office by
virtue of the power of the President to reorganize the national government. 113 In Constantino
v. Cuisia,114 the Court upheld the authority of the Secretary of Finance to execute debt-relief
contracts. The authority emanates from the power of the President to contract foreign loans
under Section 20, Article VII of the Constitution. In Angeles v. Gaite, 115 the Court ruled that
there can be no issue with regard to the President's act of limiting his power to review
decisions and orders of the Secretary of Justice, especially since the decision or order was
issued by the secretary, the President's "own alter ego."116
There can be no question that the act of the secretary is the act of the President, unless
repudiated by the latter. In this case, approval of the ASTOA by the DOTC Secretary had the
same effect as approval by the President. The same would be true even without the issuance
of E.O. 497, in which the President, on 24 January 2006, specifically delegated to the DOTC
Secretary the authority to approve contracts entered into by the TRB.
Petitioners are unimpressed. They cite Section 8 of P.D. 1113 and Section 13 of P.D. 1894
as follows:
SECTION 8. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign this
franchise nor the rights or privileges acquired hereby, to any person, firm, company,
corporation or other commercial or legal entity, nor merge with any other company or
corporation without the prior approval of the President of the Philippines. In the event that this
franchise is sold, transferred or assigned, the transferee shall be subject to all the conditions,
terms, restrictions and limitations of this Decree as fully and completely and to the same
extents as if the franchise has been granted to the same person, firm, company, corporation
or other commercial or legal entity. (Emphasis supplied)
SECTION 13. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign
this franchise nor the rights or privileges required hereby, to any person, firm, company,
corporation or other legal entity, nor merge with any other company or corporation without the
prior approval of the President of the Philippines. In the event that this franchise is sold,
transferred or assigned, the transferee shall be subject to all the conditions, terms,
restrictions and limitations of this Decree as fully and completely and to the same extent as if
the franchise has been granted to the said person, firm, company, corporation or other legal
entity. (Emphasis supplied) Petitioners insist that based on the above provisions, it is the
President who should give personal approval considering that the power to grant franchises
was exclusively vested in Congress. Hence, to allow the DOTC Secretary to exercise the
power of approval would supposedly dilute that legislative prerogative.
The argument of petitioners is founded on the assumption that PNCC in some way leased,
transferred, granted the usufruct of, sold, or assigned to SOMCO its franchise or the rights or
privileges PNCC had acquired by it. Here lies the error in petitioners' stand. First, as
discussed above, the power to grant franchises or issue authorizations for the operation of a
public utility is not exclusively exercised by Congress. Second, except where the situation
falls within that special class that demands the exclusive and personal exercise by the
President of constitutionally vested power,117 the President acts through alter egos whose
acts are as if the Chief Executive's own.
Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by PNCC or its
merger with another company ever took place.
The creation of the TRB and the grant of franchise to PNCC were made in the light of the
recognition on the part of the government that the private sector had to be involved as an
alternative source of financing for the pursuance of national infrastructure projects. As the
franchise holder for the construction, maintenance and operation of infrastructure toll
facilities, PNCC was equipped with the right and privilege, but not necessarily the means, to
undertake the project. This is where joint ventures with private investors become necessary.
A joint venture is an association of companies jointly undertaking a commercial endeavor,
with all of them contributing assets and sharing risks, profits, and losses. 118 It is hardly
distinguishable from a partnership considering that their elements are similar and, thus,
generally governed by the law on partnership.119
In joint ventures with investor companies, PNCC contributes the franchise it possesses, while
the partner contributes the financing - both necessary for the construction, maintenance, and
operation of the toll facilities. PNCC did not thereby lease, transfer, grant the usufruct of, sell,
or assign its franchise or other rights or privileges. This remains true even though the
partnership acquires a distinct and separate personality from that of the joint venturers or
leads to the formation of a new company that is the product of such joint venture, such as
PSC and SOMCO in this case.
Hence, when we say that the approval by the DOTC Secretary in this case was approval by
the President, it was not in connection with the franchise of PNCC, as required under Section
8 of P.D. 1113 and Section 13 of P.D. 1894. Rather, the approval was in connection with the
powers of the TRB to enter into contracts on behalf of the government as provided under
Section 3(a) of P.D. 1112, which states:
SECTION 3. Powers and Duties of the Board. - The Board shall have in addition to its
general powers of administration the following powers and duties:
(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf
of the Republic of the Philippines with persons, natural or juridical, for the construction,
operation and maintenance of toll facilities such as but not limited to national highways,
roads, bridges, and public thoroughfares. Said contract shall be open to citizens of the
Philippines and/or to corporations or associations qualified under the Constitution and
authorized by law to engage in toll operations; (Emphasis supplied)
VI
Petitioners have not shown that the transfer of toll operations to SOM CO was grossly
disadvantageous to the government.
In support of their contention that the transfer of toll operations from PSC to SOMCO was
grossly disadvantageous to the government, petitioners belittle the initial capital investment,
private ownership, and track record of SOMCO.
When one uses the term "grossly disadvantageous to the government," the allegations in
support thereof must reflect the meaning accorded to the phrase. "Gross" means glaring,
reprehensible, culpable, flagrant, and shocking.120 It requires that the mere allegation shows
that the disadvantage on the part of the government is unmistakable, obvious, and certain.
In this case, we find that the allegations of petitioners are nothing more than speculations,
apprehensions, and suppositions.1âwphi1 They speculate that with its "measly" capital
investment, SOMCO would not be able to cover the overhead expenses for personal services
alone. They fear that the revenue from toll operations would go to "private pockets" in
exchange for a small settlement amount to be given to PSC. Given that SOMCO has no
proven track record, petitioners deduce that its assumption of the toll operations would lead
to poor delivery of toll services to the public.
The aim in the establishment of toll facilities is to draw from private resources the financing of
government infrastructure projects. Naturally, these private investors would want to receive
reasonable return on their investments. Thus, the collection of toll fees for the use of public
improvements has been authorized, subject to supervision and regulation by the national
government.121 As regards the ₱320 million settlement given to PSC, the amount was to be
used principally for the payment of its liabilities of PSC arising from the retrenchment of its
employees. We note that under the MOA, the residual assets of PSC shall still be offered for
sale to CMMTC, subject to valuation.122 Thus, it would be inaccurate to say that PSC would
receive only ₱320 million for the entire arrangement.
It is quite understandable that SOMCO does not yet have a proven track record in toll
operations, considering that it was only the ASTOA and the MOA that gave birth to it. We are
not prepared to rule that this lack of track record would result in poor delivery of toll services,
especially because most of the former employees of PSC have been rehired by SOMCO, an
allegation of respondents that was never refuted by petitioners. Neither are we prepared to
take the amount of SOMCO's initial capital investment against it, as it is considerably higher
than ₱500,000, the authorized capital stock of PSC as of 2002.123
A FINAL NOTE
R.A. 8975 prohibits lower courts from issuing any temporary restraining order, preliminary
injunction, or preliminary mandatory injunction against the government - or any of its
subdivisions, officials or any person or entity, whether public or private, acting under the
government's direction - to restrain, prohibit or compel acts related to the implementation and
completion of government infrastructure projects.
The rationale for the law is easily discernible. Injunctions and restraining orders tend to derail
the expeditious and efficient implementation and completion of government infrastructure
projects; increase construction, maintenance and repair costs; and delay the enjoyment of
the social and economic benefits therefrom. Thus, unless the matter is of extreme urgency
involving a constitutional issue, judges of lower courts who shall issue injunctive writs or
restraining orders in violation of the law shall be administratively liable.
The law is clear that what is prohibited is merely the issuance of provisional orders enjoining
the implementation of a national government project. R.A. 8975 does not bar lower courts
from assuming jurisdiction over complaints that seek the nullification or implementation of a
national government infrastructure project as ultimate relief.124
There is no question that the ultimate prayer in the instant case is the nullification of a
national government project considering that the ASTOA involved the design and
construction of Stage 2 of the South Metro Manila Skyway, as well as the operation and
maintenance of Stage 1 thereof. The prayer is grounded on the contract's alleged
unconstitutionality, violation of the law, and gross disadvantage to the government. Such
principal action and relief were within the jurisdiction of the RTC, which acted correctly when
it ordered respondents to file their respective answers to the complaint, even while it denied
the prayer for the issuance of a writ of preliminary injunction and/or temporary restraining
order in observance of R.A. 8975.
It was therefore error on the part of petitioners to come directly before this Court for the sole
reason that the lower courts will not be able to grant the prayer for the issuance of a writ of
preliminary injunction and/or temporary restraining order to enjoin the assumption of toll
operations by SOMCO. The error even takes on a whole new meaning, because SOMCO
assumed responsibility for the operations and maintenance of the South Metro Manila
Skyway at 10:00 p.m. on 31 December 2007. On the other hand, the complaint before the
RTC seeking to enjoin the assumption by SOMCO was filed only on 3 January 2008, while
the instant petition was filed on 4 February 2008.

As we held in Aznar Brothers Realty, Inc. v. CA,125 injunction does not lie when the act sought
to be enjoined has already become a fait accompli or an accomplished or consummated act.

Parties must observe the hierarchy of courts before seeking relief from this Court.
Observance thereof minimizes the imposition on the already limited time of this Court and
prevents delay, intended or otherwise, in the adjudication of cases. 126 We do not appreciate
the litigants' practice of directly seeking recourse before this Court, relying on the gravitas of
a personality yet making serious claims without the proof to support them.

WHEREFORE, the petition is DISMISSED. The prayer for the issuance of a writ of
preliminary injunction and/or temporary restraining order is DENIED.

SO ORDERED.
 On October 14, 1994, Director Rosas, informed the petitioner of his reassignment, effective
October 17, 1994.

Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the
latter denied the request. The petitioner prepared a letter dated October 18, 1994 to the
President of the Philippines, asking for a reconsideration of his reassignment, and furnished a
copy of the same to the DECS. However, he subsequently changed his mind and refrained
from filing the letter with the Office of President.

THIRD DIVISION On October 19, 1994, the petitioner filed the instant petition."2

G.R. No. 119903 August 15, 2000 On October 26, 1994, the Court of Appeals denied private respondent’s prayer for the
issuance of a Temporary Restraining Order (TRO).3
HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR NILO L.
ROSAS in his capacity as REGIONAL DIRECTOR, DEPARTMENT OF EDUCATION, On November 22, 1994, it set aside its earlier resolution denying the prayer for the issuance
CULTURE AND SPORTS, petitioners, of a TRO; and thereafter, restrained the petitioners "from implementing the re-assignment of
vs. the petitioner [private respondent herein] from incumbent Schools Division Superintendent of
HON. COURT OF APPEALS AND DR. BIENVENIDO A. ICASIANO, respondents. Quezon City to Vocational Schools Superintendent of the Marikina Institute of Science and
Technology."4
DECISION
On December 21, 1994, the Court of Appeals issued another resolution setting the hearing of
PURISIMA, J.: the petition for the issuance of a writ of preliminary injunction and enjoining the petitioners
from implementing the reassignment of the private respondent.
This is a petition for review on certiorari under Rule 45 of the Rules of Court brought by
Secretary and the Director for the National Capital Region of the Department of Education, On March 28, 1995, it issued its assailed decision; holding as follows:
Culture and Sports (DECS), to question the decision1 of the Court of Appeals in CA-G.R. SP
No. 35505. "WHEREFORE, for lack of a period or any indication that it is only temporary, the
reassignment of the petitioner from Schools Division Superintendent, Division of City
The Court of Appeals found the facts as follows: Schools, Quezon City, to Vocational Schools Superintendent of the Marikina Institute of
Science and Technology pursuant to the Memorandum of Secretary Ricardo T. Gloria to the
"On June 29, 1989, petitioner [private respondent herein] was appointed Schools Division President of the Philippines dated 10 October 1994, is hereby declared to be violative of
Superintendent, Division of City Schools, Quezon City, by the then President Corazon C. petitioner’s right to security of tenure, and the respondents are hereby prohibited from
Aquino. implementing the same.

On October 10, 1994, respondent Secretary Gloria recommended to the President of the SO ORDERED."5
Philippines that the petitioner be reassigned as Superintendent of the MIST [Marikina Institute
of Science and Technology], to fill up the vacuum created by the retirement of its Petitioners are now before the Court seeking relief from the decision of the appellate court,
Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994. contending that:

On October 12, 1994, the President approved the recommendation of Secretary Gloria. I

On October 13, 1994, a copy of the recommendation for petitioner’s reassignment, as RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE
approved by the President, was transmitted by Secretary Gloria to Director Rosas for INSTRUMENTAL IN PRIVATE RESPONDENT’S CIRCUMVENTION OF THE
implementation. PRESIDENTIAL IMMUNITY FROM SUIT BY GIVING DUE COURSE AND
 GRANTING RELIEFS PRAYED FOR IN A SUIT PURPORTEDLY FILED AGAINST
PETITIONERS BUT ACTUALLY QUESTIONING AN ACT OF THE PRESIDENT.
II
RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR APPLICABLE
DECISIONS OF THE SUPREME COURT6
The pivotal issue for resolution here is whether the reassignment of private respondent from
School Division Superintendent of Quezon City to Vocational School Superintendent of MIST
is violative of his security of tenure? Petitioners maintain that there is no violation of security
of tenure involved. Private respondent maintains otherwise.
In taking favorable action on private respondent’s petition for prohibition, the Court of Appeals
ratiocinated:
"Notwithstanding the protestations of counsel for the respondents, the reassignment of the
petitioner to MIST appears to be indefinite. No period is fixed. No objective or purpose, from
which the temporariness of the assignment may be inferred, is set. In fact, the
recommendation of respondent Secretary Gloria to the President that the position of
superintendent of MIST ‘will best fit his (petitioner’s) qualifications and experience.’ (Exh. ‘C-
2’) implies that the proposed reassignment will be indefinite."7
Petitioners theorize that the present petition for prohibition is improper because the same
attacks an act of the President, in violation of the doctrine of presidential immunity from suit.
Petitioners’ contention is untenable for the simple reason that the petition is directed against
petitioners and not against the President. The questioned acts are those of petitioners and
not of the President. Furthermore, presidential decisions may be questioned before the courts
where there is grave abuse of discretion or that the President acted without or in excess of
jurisdiction.8
Petitioners’ submission that the petition of private respondent with the Court of Appeals is
improper for failing to show that petitioners constituted themselves into a "court" conducting a
"proceeding" and for failing to show that any of the petitioners acted beyond their jurisdiction
in the exercise of their judicial or ministerial functions, is barren of merit. Private respondent
has clearly averred that the petitioners acted with grave abuse of discretion amounting to lack
of jurisdiction and/or excess of jurisdiction in reassigning the private respondent in a way that
infringed upon his security of tenure. And petitioners themselves admitted that their
questioned act constituted a ministerial duty, such that they could be subject to charges of
insubordination if they did not comply with the presidential order. What is more, where an
administrative department acts with grave abuse of discretion, which is equivalent to a
capricious and whimsical exercise of judgment, or where the power is exercised in an
arbitrary or despotic manner, there is a justification for the courts to set aside the
administrative determination thus reached.9
Petitioners contend that the doctrine enunciated in Bentain vs. Court of Appeals10 -- that "a
reassignment that is indefinite and results in a reduction in rank, status and salary, is in
effect, a constructive removal from the service" -- does not apply in the present case for the
reassignment in question was merely temporary, lasting only until the appointment of a new
Vocational School Superintendent of MIST.
After a careful study, the Court upholds the finding of the respondent court that the
reassignment of petitioner to MIST "appears to be indefinite". The same can be inferred from
the Memorandum11 of Secretary Gloria for President Fidel V. Ramos to the effect that the
reassignment of private respondent will "best fit his qualifications and experience" being "an
expert in vocational and technical education." It can thus be gleaned that subject
reassignment is more than temporary as the private respondent has been described as fit for
the (reassigned) job, being an expert in the field. Besides, there is nothing in the said
Memorandum to show that the reassignment of private respondent is temporary or would
only last until a permanent replacement is found as no period is specified or fixed; which fact
evinces an intention on the part of petitioners to reassign private respondent with no definite
period or duration. Such feature of the reassignment in question is definitely violative of the
security of tenure of the private respondent. As held in Bentain:
"Security of tenure is a fundamental and constitutionally guaranteed feature of our civil
service.1âwphi1 The mantle of its protection extends not only to employees removed without
cause but also to cases of unconsented transfers which are tantamount to illegal removals
(Department of Education, Culture and Sports vs. Court of Appeals, 183 SCRA 555; Ibanez
vs. COMELEC, 19 SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138).
While a temporary transfer or assignment of personnel is permissible even without the
employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his
removal, or is a scheme to lure him away from his permanent position, or designed to
indirectly terminate his service, or force his resignation. Such a transfer would in effect
circumvent the provision which safeguards the tenure of office of those who are in the Civil
Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116)." 12
Having found the reassignment of private respondent to the MIST to be violative of his
security of tenure, the order for his reassignment to the MIST cannot be countenanced.
WHEREFORE, the petition is hereby DENIED, and the Decision of the Court of Appeals in
CA-G.R. SP No. 35505 AFFIRMED. No pronouncement as to costs.
SO ORDERED.
 2.3.2. In the light of the authority granted to the local government units under the
Local Government Code to provide for additional allowances and other benefits to
national government officials and employees assigned in their locality, such
additional allowances in the form of honorarium at rates not exceeding P1,000.00 in
provinces and cities and P700.00 in municipalities may be granted subject to the
following conditions:

a) That the grant is not mandatory on the part of the LGUs;

EN BANC b) That all contractual and statutory obligations of the LGU including the
implementation of R.A. 6758 shall have been fully provided in the budget;
G.R. No. 125350 December 3, 2002
c) That the budgetary requirements/limitations under Section 324 and 325 of R.A.
HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28), 7160 should be satisfied and/or complied with; and
ULRIC R. CAÑETE (Presiding Judge, Branch 25),
AGUSTINE R. VESTIL (Presiding Judge, Branch 56), d) That the LGU has fully implemented the devolution of functions/personnel in
HON. MTC JUDGES TEMISTOCLES M. BOHOLST (Presiding Judge, Branch 1), accordance with R.A. 7160.3" (italics supplied)
VICENTE C. FANILAG (Judge Designate, Branch 2),
and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of Mandaue xxx xxx xxx
City, petitioners,
vs.
COMMISSION ON AUDIT, respondent. The said circular likewise provided for its immediate effectivity without need of publication:

DECISION "5.0 EFFECTIVITY

CORONA, J.: This Circular shall take effect immediately."

Before us is a petition for certiorari under Rule 64 to annul the decision1 and resolution2,
dated September 21, 1995 and May 28, 1996, respectively, of the respondent Commission
on Audit (COA) affirming the notices of the Mandaue City Auditor which diminished the
monthly additional allowances received by the petitioner judges of the Regional Trial Court
(RTC) and Municipal Trial Court (MTC) stationed in Mandaue City.
The undisputed facts are as follows:
In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances
of P1,260 each through the yearly appropriation ordinance enacted by the Sangguniang
Panlungsod of the said city. In 1991, Mandaue City increased the amount to P1,500 for each
judge.
On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed
Local Budget Circular No. 55 (LBC 55) which provided that:
Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to
herein petitioners, namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R. Cañete,
Agustin R. Vestil, Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag and
Wilfredo A. Dagatan, in excess of the amount authorized by LBC 55. Beginning October,
1994, the additional monthly allowances of the petitioner judges were reduced to P1,000
each. They were also asked to reimburse the amount they received in excess of P1,000 from
April to September, 1994.
The petitioner judges filed with the Office of the City Auditor a protest against the notices of
disallowance. But the City Auditor treated the protest as a motion for reconsideration and
indorsed the same to the COA Regional Office No. 7. In turn, the COA Regional Office
referred the motion to the head office with a recommendation that the same be denied.
On September 21, 1995, respondent COA rendered a decision denying petitioners' motion for
reconsideration. The COA held that:

"x x x xxx xxx

The issue to be resolved in the instant appeal is whether or not the City Ordinance of
Mandaue which provides a higher rate of allowances to the appellant judges may prevail over
that fixed by the DBM under Local Budget Circular No. 55 dated March 15, 1994.
xxx xxx xxx
Applying the foregoing doctrine, appropriation ordinance of local government units is subject
to the organizational, budgetary and compensation policies of budgetary authorities (COA 5th
Ind., dated March 17, 1994 re: Province of Antique; COA letter dated May 17, 1994 re:
Request of Hon. Renato Leviste, Cong. 1st Dist. Oriental Mindoro). In this regard, attention is
invited to Administrative Order No. 42 issued on March 3, 1993 by the President of the
Philippines clarifying the role of DBM in the compensation and classification of local
government positions under RA No. 7160 vis-avis the provisions of RA No. 6758 in view of
the abolition of the JCLGPA. Section 1 of said Administrative Order provides that:
"Section 1. The Department of Budget and Management as the lead administrator of
RA No. 6758 shall, through its Compensation and Position Classification Bureau,
continue to have the following responsibilities in connection with the implementation
of the Local Government Code of 1991:
a) Provide guidelines on the classification of local government positions
and on the specific rates of pay therefore;
b) Provide criteria and guidelines for the grant of
all allowances and additional forms of compensation to local government
employees; xxx." (underscoring supplied)
To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated March
15, 1994, whose effectivity clause provides that:
xxx xxx xxx
"5.0 EFFECTIVITY
This Circular shall take effect immediately."
It is a well-settled rule that implementing rules and regulations promulgated by administrative
or executive officer in accordance with, and as authorized by law, has the force and effect of
law or partake the nature of a statute (Victorias Milling Co., Inc., vs. Social Security
Commission, 114 Phil. 555, cited in Agpalo's Statutory Construction, 2nd Ed. P. 16; Justice
Cruz's Phil. Political Law, 1984 Ed., p. 103; Espanol vs. Phil Veterans Administration, 137
SCRA 314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).
xxx xxx xxx
There being no statutory basis to grant additional allowance to judges in excess of P1,000.00
chargeable against the local government units where they are stationed, this Commission
finds no substantial grounds or cogent reason to disturb the decision of the City Auditor,
Mandaue City, disallowing in audit the allowances in question. Accordingly, the above-
captioned appeal of the MTC and RTC Judges of Mandaue City, insofar as the same is not
covered by Circular Letter No. 91-7, is hereby dismissed for lack of merit.
xxx xxx x x x4
On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the
petitioner judges, filed a motion for reconsideration of the decision of the COA. In a resolution
dated May 28, 1996, the COA denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the following questions
for resolution:
I
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO PROVIDE
ADDITIONAL ALLOWANCES AND OTHER BENEFITS TO JUDGES STATIONED IN AND
ASSIGNED TO THE CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET
CIRCULAR NO. 55 RENDER INOPERATIVE THE POWER OF THE LEGISLATIVE BODY
OF A CITY BY SETTING A LIMIT TO THE EXTENT OF THE EXERCISE OF SUCH
POWER?
III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET
CIRCULAR NO. 55 TO INCLUDE MEMBERS OF THE JUDICIARY IN FIXING THE CEILING
OF ADDITIONAL ALLOWANCES AND BENEFITS TO BE PROVIDED TO JUDGES
STATIONED IN AND ASSIGNED TO MANDAUE CITY BY THE CITY GOVERNMENT AT
P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE BEEN RECEIVING
ALLOWANCES OF P1,500.00 MONTHLY FOR THE PAST FIVE YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE
DEPARTMENT OF BUDGET AND MANAGEMENT VALID AND ENFORCEABLE
CONSIDERING THAT IT WAS NOT DULY PUBLISHED IN ACCODANCE WITH LAW?5
Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue
City by dictating a uniform amount that a local government unit can disburse as additional
allowances to judges stationed therein. They maintain that said circular is not supported by
any law and therefore goes beyond the supervisory powers of the President. They further
allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for additional allowances to
judges is allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the Local
Government Code of 1991, which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. – (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16
of this Code and in the proper exercise of the corporate powers of the city as provided for
under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
xxx xxx xxx
(xi) When the finances of the city government allow, provide for additional allowances and
other benefits to judges, prosecutors, public elementary and high school teachers, and other
national government officials stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a
manifestation supporting the position of the petitioner judges. The Solicitor General argues
that (1) DBM only enjoys the power to review and determine whether the disbursements of
funds were made in accordance with the ordinance passed by a local government unit while
(2) the COA has no more than auditorial visitation powers over local government units
pursuant to Section 348 of RA 7160 which provides for the power to inspect at any time the
financial accounts of local government units.
Moreover, the Solicitor General opines that "the DBM and the respondent are only authorized
under RA 7160 to promulgate a Budget Operations Manual for local government units, to
improve and systematize methods, techniques and procedures employed in budget
preparation, authorization, execution and accountability" pursuant to Section 354 of RA 7160.
The Solicitor General points out that LBC 55 was not exercised under any of the
aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and statutory authority of
a city government to provide allowances to judges stationed therein is not absolute. Congress
may set limitations on the exercise of autonomy. It is for the President, through the DBM, to
check whether these legislative limitations are being followed by the local government units.
One such law imposing a limitation on a local government unit's autonomy is Section 458,
par. (a) (1) [xi], of RA 7160, which authorizes the disbursement of additional allowances and
other benefits to judges subject to the condition that the finances of the city government
should allow the same. Thus, DBM is merely enforcing the condition of the law when it sets a
uniform maximum amount for the additional allowances that a city government can release to
judges stationed therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions of the
yearly approved ordinance granting additional allowances to judges are still prohibited by the
appropriation laws passed by Congress every year. COA argues that Mandaue City gets the
funds for the said additional allowances of judges from the Internal Revenue Allotment (IRA).
But the General Appropriations Acts of 1994 and 1995 do not mention the disbursement of
additional allowances to judges as one of the allowable uses of the IRA. Hence, the
provisions of said ordinance granting additional allowances, taken from the IRA, to herein
petitioner judges are void for being contrary to law.
To resolve the instant petition, there are two issues that we must address: (1) whether LBC
55 of the DBM is void for going beyond the supervisory powers of the President and for not
having been published and (2) whether the yearly appropriation ordinance enacted by the
City of Mandaue that provides for additional allowances to judges contravenes the annual
appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution6 guarantees autonomy to local government
units, the exercise of local autonomy remains subject to the power of control by Congress
and the power of supervision by the President. Section 4 of Article X of the 1987 Philippine
Constitution provides that:
Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. x x x
In Pimentel vs. Aguirre7, we defined the supervisory power of the President and distinguished
it from the power of control exercised by Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been interpreted
to exclude the power of control. In Mondano v. Silvosa,i 5 the Court contrasted the President's
power of supervision over local government officials with that of his power of control over
executive officials of the national government. It was emphasized that the two terms --
supervision and control -- differed in meaning and extent. The Court distinguished them as
follows:
"x x x In administrative law, supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make them perform
their duties. Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and
to substitute the judgment of the former for that of the latter."ii 6
In Taule v. Santos,iii 7 we further stated that the Chief Executive wielded no more authority
than that of checking whether local governments or their officials were performing their duties
as provided by the fundamental law and by statutes. He cannot interfere with local
governments, so long as they act within the scope of their authority. "Supervisory power,
when contrasted with control, is the power of mere oversight over an inferior body; it does not
include any restraining authority over such body,"iv 8 we said.
In a more recent case, Drilon v. Lim,v 9 the difference between control and supervision was
further delineated. Officers in control lay down the rules in the performance or
accomplishment of an act. If these rules are not followed, they may, in their discretion, order
the act undone or redone by their subordinates or even decide to do it themselves. On the
other hand, supervision does not cover such authority. Supervising officials merely see to it
that the rules are followed, but they themselves do not lay down such rules, nor do they have
the discretion to modify or replace them. If the rules are not observed, they may order the
work done or redone, but only to conform to such rules. They may not prescribe their own
manner of execution of the act. They have no discretion on this matter except to see to it that
the rules are followed.
Under our present system of government, executive power is vested in the President. vi10 The
members of the Cabinet and other executive officials are merely alter egos. As such, they are
subject to the power of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed, suspended or reversed. vii 11 In
contrast, the heads of political subdivisions are elected by the people. Their sovereign
powers emanate from the electorate, to whom they are directly accountable. By constitutional
fiat, they are subject to the President's supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By the same token, the President may
not withhold or alter any authority or power given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities of a local government
unit if he or she finds that the latter has acted contrary to law. This is the scope of the
President's supervisory powers over local government units. Hence, the President or any of
his or her alter egos cannot interfere in local affairs as long as the concerned local
government unit acts within the parameters of the law and the Constitution. Any directive
therefore by the President or any of his or her alter egos seeking to alter the wisdom of a law-
conforming judgment on local affairs of a local government unit is a patent nullity because it
violates the principle of local autonomy and separation of powers of the executive and
legislative departments in governing municipal corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a local government
unit should not exceed P1,000 in provinces and cities and P700 in municipalities. Section
458, par. (a)(1)(xi), of RA 7160, the law that supposedly serves as the legal basis of LBC 55,
allows the grant of additional allowances to judges "when the finances of the city government
allow." The said provision does not authorize setting a definite maximum limit to the additional
allowances granted to judges. Thus, we need not belabor the point that the finances of a city
government may allow the grant of additional allowances higher than P1,000 if the revenues
of the said city government exceed its annual expenditures. Thus, to illustrate, a city
government with locally generated annual revenues of P40 million and expenditures of P35
million can afford to grant additional allowances of more than P1,000 each to, say, ten judges
inasmuch as the finances of the city can afford it.
Setting a uniform amount for the grant of additional allowances is an inappropriate way of
enforcing the criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-
stepped its power of supervision over local government units by imposing a prohibition that
did not correspond with the law it sought to implement. In other words, the prohibitory nature
of the circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling
in Tañada vs. Tuvera8where we held that:
xxx. Administrative rules and regulations must also be published if their purpose is to enforce
or implement existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of an administrative agency and the public, need not be published. Neither is
publication required of the so-called letters of instruction issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.
Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely
an interpretative regulation applicable to the personnel of an LGU. We disagree. In De Jesus
vs. Commission on Audit9 where we dealt with the same issue, this Court declared void, for
lack of publication, a DBM circular that disallowed payment of allowances and other
additional compensation to government officials and employees. In refuting respondent
COA's argument that said circular was merely an internal regulation, we ruled that:
On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative. Following
the doctrine enunciated in Tañada v. Tuvera, publication in the Official Gazette or in a
newspaper of general circulation in the Philippines is required since DBM-CCC No. 10 is in
the nature of an administrative circular the purpose of which is to enforce or
implement an existing law. Stated differently, to be effective and enforceable, DBM-CCC
No. 10 must go through the requisite publication in the Official Gazette or in a newspaper of
general circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which
completely disallows payment of allowances and other additional compensation to
government officials and employees, starting November 1, 1989, is not a mere interpretative
or internal regulation. It is something more than that. And why not, when it tends to deprive
government workers of their allowance and additional compensation sorely needed to keep
body and soul together. At the very least, before the said circular under attack may be
permitted to substantially reduce their income, the government officials and
employees concerned should be apprised and alerted by the publication of subject
circular in the Official Gazette or in a newspaper of general circulation in the
Philippines – to the end that they be given amplest opportunity to voice out whatever
opposition they may have, and to ventilate their stance on the matter. This approach is
more in keeping with democratic precepts and rudiments of fairness and
transparency. (emphasis supplied)
In Philippine International Trading Corporation vs. Commission on Audit10, we again declared
the same circular as void, for lack of publication, despite the fact that it was re-issued and
then submitted for publication. Emphasizing the importance of publication to the effectivity of
a regulation, we therein held that:
It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and
submitted for publication in the Official Gazette per letter to the National Printing Office dated
March 9, 1999. Would the subsequent publication thereof cure the defect and retroact to the
time that the above-mentioned items were disallowed in audit?
The answer is in the negative, precisely for the reason that publication is required as
a condition precedent to the effectivity of a law to inform the public of the contents of the law
or rules and regulations before their rights and interests are affected by the same. From the
time the COA disallowed the expenses in audit up to the filing of herein petition the subject
circular remained in legal limbo due to its non-publication. As was stated in Tañada v.
Tuvera, "prior publication of laws before they become effective cannot be dispensed with, for
the reason that it would deny the public knowledge of the laws that are supposed to govern
it."11
We now resolve the second issue of whether the yearly appropriation ordinance enacted by
Mandaue City providing for fixed allowances for judges contravenes any law and should
therefore be struck down as null and void.
According to respondent COA, even if LBC 55 were void, the ordinances enacted by
Mandaue City granting additional allowances to the petitioner judges would "still (be) bereft of
legal basis for want of a lawful source of funds considering that the IRA cannot be used for
such purposes." Respondent COA showed that Mandaue City's funds consisted of locally
generated revenues and the IRA. From 1989 to 1995, Mandaue City's yearly expenditures
exceeded its locally generated revenues, thus resulting in a deficit. During all those years, it
was the IRA that enabled Mandaue City to incur a surplus. Respondent avers that Mandaue
City used its IRA to pay for said additional allowances and this violated paragraph 2 of the
Special Provisions, page 1060, of RA 7845 (The General Appropriations Act of 1995) 12 and
paragraph 3 of the Special Provision, page 1225, of RA 7663 (The General Appropriations
Act of 1994)13 which specifically identified the objects of expenditure of the IRA. Nowhere in
said provisions of the two budgetary laws does it say that the IRA can be used for additional
allowances of judges. Respondent COA thus argues that the provisions in the ordinance
providing for such disbursement are against the law, considering that the grant of the subject
allowances is not within the specified use allowed by the aforesaid yearly appropriations acts.
We disagree.
Respondent COA failed to prove that Mandaue City used the IRA to spend for the additional
allowances of the judges. There was no evidence submitted by COA showing the breakdown
of the expenses of the city government and the funds used for said expenses. All the COA
presented were the amounts expended, the locally generated revenues, the deficit, the
surplus and the IRA received each year. Aside from these items, no data or figures were
presented to show that Mandaue City deducted the subject allowances from the IRA. In other
words, just because Mandaue City's locally generated revenues were not enough to cover its
expenditures, this did not mean that the additional allowances of petitioner judges were taken
from the IRA and not from the city's own revenues.
Moreover, the DBM neither conducted a formal review nor ordered a disapproval of Mandaue
City's appropriation ordinances, in accordance with the procedure outlined by Sections 326
and 327 of RA 7160 which provide that:
Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities,
Independent Component Cities, and Municipalities within the Metropolitan Manila Area. The
Department of Budget and Management shall review ordinances authorizing the annual or
supplemental appropriations of provinces, highly-urbanized cities, independent component
cities, and municipalities within the Metropolitan Manila Area in accordance with the
immediately succeeding Section.
Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.-
The sangguninang panlalawigan shall review the ordinance authorizing annual or
supplemental appropriations of component cities and municipalities in the same manner and
within the same period prescribed for the review of other ordinances.
If within ninety (90) days from receipt of copies of such ordinance, the sangguniang
panlalawigan takes no action thereon, the same shall be deemed to have been
reviewed in accordance with law and shall continue to be in full force and
effect. (emphasis supplied)
Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should
have taken positive action. Otherwise, such ordinance was deemed to have been properly
reviewed and deemed to have taken effect. Inasmuch as, in the instant case, the DBM did
not follow the appropriate procedure for reviewing the subject ordinance of Mandaue City and
allowed the 90-day period to lapse, it can no longer question the legality of the provisions in
the said ordinance granting additional allowances to judges stationed in the said city.

WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution,
dated September 21, 1995 and May 28, 1996, respectively, of the Commission on Audit are
hereby set aside.

No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 190259 June 7, 2011
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-
GENERALE Petitioners,
vs.
HON. RONALDO PUNO, in his capacity as Secretary of the Department of Interior and
Local Government and alter-ego of President Gloria Macapagal-Arroyo, and anyone
acting in his stead and on behalf of the President of the Philippines, ARMED FORCES
OF THE PHILIPPINES (AFP), or any of their units operating in the Autonomous Region
in Muslim Mindanao (ARMM), and PHILIPPINE NATIONAL POLICE, or any of their units
operating in ARMM, Respondents.
DECISION
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men and women,
including some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation
1946,1 placing "the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato
under a state of emergency." She directed the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP) "to undertake such measures as may be allowed by the
Constitution and by law to prevent and suppress all incidents of lawless violence" in the
named places.
Three days later or on November 27, President Arroyo also issued Administrative Order 273
(AO 273)2"transferring" supervision of the Autonomous Region of Muslim Mindanao (ARMM)
from the Office of the President to the Department of Interior and Local Government (DILG).
But, due to issues raised over the terminology used in AO 273, the President issued
Administrative Order 273-A (AO 273-A) amending the former, by "delegating" instead of
"transferring" supervision of the ARMM to the DILG.3
Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners
Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM
officials,4 filed this petition for prohibition under Rule 65. They alleged that the proclamation
and the orders empowered the DILG Secretary to take over ARMM’s operations and seize
the regional government’s powers, in violation of the principle of local autonomy under
Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The
President gave the DILG Secretary the power to exercise, not merely administrative
supervision, but control over the ARMM since the latter could suspend ARMM officials and
replace them.5
Petitioner ARMM officials claimed that the President had no factual basis for declaring a state
of emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where
no critical violent incidents occurred. The deployment of troops and the taking over of the
ARMM constitutes an invalid exercise of the President’s emergency powers.6 Petitioners
asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional
and that respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing
them.
In its comment for the respondents,7 the Office of the Solicitor General (OSG) insisted that
the President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to
restore peace and order in subject places.8She issued the proclamation pursuant to her
"calling out" power9 as Commander-in-Chief under the first sentence of Section 18, Article VII
of the Constitution. The determination of the need to exercise this power rests solely on her
wisdom.10 She must use her judgment based on intelligence reports and such best
information as are available to her to call out the armed forces to suppress and prevent
lawless violence wherever and whenever these reared their ugly heads.
On the other hand, the President merely delegated through AOs 273 and 273-A her
supervisory powers over the ARMM to the DILG Secretary who was her alter ego any way.
These orders did not authorize a take over of the ARMM. They did not give him blanket
authority to suspend or replace ARMM officials.11 The delegation was necessary to facilitate
the investigation of the mass killings.12 Further, the assailed proclamation and administrative
orders did not provide for the exercise of emergency powers.13
Although normalcy has in the meantime returned to the places subject of this petition, it might
be relevant to rule on the issues raised in this petition since some acts done pursuant to
Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal
cases that the government subsequently filed against those believed affected by such
proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of
local autonomy under Section 16, Article X of the Constitution, and Section 1, Article
V of the Expanded ARMM Organic Act;
2. Whether or not President Arroyo invalidly exercised emergency powers when she
called out the AFP and the PNP to prevent and suppress all incidents of lawless
violence in Maguindanao, Sultan Kudarat, and Cotabato City; and
 3. Whether or not the President had factual bases for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and administrative orders violate
the principle of local autonomy is anchored on the allegation that, through them, the
President authorized the DILG Secretary to take over the operations of the ARMM and
assume direct governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control of the powers of the
ARMM. After law enforcement agents took respondent Governor of ARMM into custody for
alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner
Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule
on succession found in Article VII, Section 12,14 of RA 9054. In turn, Acting Governor Adiong
named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale,
Acting ARMM Vice-Governor.15 In short, the DILG Secretary did not take over the
administration or operations of the ARMM.
Two. Petitioners contend that the President unlawfully exercised emergency powers when
she ordered the deployment of AFP and PNP personnel in the places mentioned in the
proclamation.16 But such deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution, which provides:
SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.
The President did not proclaim a national emergency, only a state of emergency in the three
places mentioned. And she did not act pursuant to any law enacted by Congress that
authorized her to exercise extraordinary powers. The calling out of the armed forces to
prevent or suppress lawless violence in such places is a power that the Constitution directly
vests in the President. She did not need a congressional authority to exercise the same.
Three. The President’s call on the armed forces to prevent or suppress lawless violence
springs from the power vested in her under Section 18, Article VII of the Constitution, which
provides.17
SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the President’s exercise of
the above power,18 it would generally defer to her judgment on the matter. As the Court
acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,19 it is clearly to the
President that the Constitution entrusts the determination of the need for calling out the
armed forces to prevent and suppress lawless violence. Unless it is shown that such
determination was attended by grave abuse of discretion, the Court will accord respect to the
President’s judgment. Thus, the Court said:
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the
pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a need to call out
the armed forces may be of a nature not constituting technical proof.
On the other hand, the President, as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect at all. x x x. 20
Here, petitioners failed to show that the declaration of a state of emergency in the Provinces
of Maguindanao, Sultan Kudarat and Cotabato City, as well as the President’s exercise of the
"calling out" power had no factual basis. They simply alleged that, since not all areas under
the ARMM were placed under a state of emergency, it follows that the take over of the entire
ARMM by the DILG Secretary had no basis too.21
But, apart from the fact that there was no such take over to begin with, the OSG also clearly
explained the factual bases for the President’s decision to call out the armed forces, as
follows:
The Ampatuan and Mangudadatu clans are prominent families engaged in the political
control of Maguindanao. It is also a known fact that both families have an arsenal of armed
followers who hold elective positions in various parts of the ARMM and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed are members of the
Mangudadatu family and the main perpetrators of the brutal killings are members and
followers of the Ampatuan family, both the military and police had to prepare for and prevent
reported retaliatory actions from the Mangudadatu clan and additional offensive measures
from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be approximately two thousand four hundred (2,400)
persons, equipped with about two thousand (2,000) firearms, about four hundred (400) of
which have been accounted for. x x x
As for the Mangudadatus, they have an estimated one thousand eight hundred (1,800)
personnel, with about two hundred (200) firearms. x x x
Apart from their own personal forces, both clans have Special Civilian Auxiliary Army (SCAA)
personnel who support them: about five hundred (500) for the Ampatuans and three hundred
(300) for the Mangudadatus.
What could be worse than the armed clash of two warring clans and their armed supporters,
especially in light of intelligence reports on the potential involvement of rebel armed groups
(RAGs).
Notably, the present administration of President Benigno Aquino III has not withdrawn the
declaration of a state of emergency under Proclamation 1946. It has been reported24 that the
declaration would not be lifted soon because there is still a need to disband private armies
and confiscate loose firearms. Apparently, the presence of troops in those places is still
necessary to ease fear and tension among the citizenry and prevent and suppress any
violence that may still erupt, despite the passage of more than a year from the time of the
Maguindanao massacre.
Since petitioners are not able to demonstrate that the proclamation of state of emergency in
the subject places and the calling out of the armed forces to prevent or suppress lawless
violence there have clearly no factual bases, the Court must respect the President’s actions.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

One RAG was reported to have planned an attack on the forces of Datu Andal Ampatuan, Sr.
to show support and sympathy for the victims. The said attack shall worsen the age-old
territorial dispute between the said RAG and the Ampatuan family.

xxxx

On the other hand, RAG faction which is based in Sultan Kudarat was reported to have
received three million pesos (₱3,000,000.00) from Datu Andal Ampatuan, Sr. for the
procurement of ammunition. The said faction is a force to reckon with because the group is
well capable of launching a series of violent activities to divert the attention of the people and
the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu family. The
Cotabato-based faction has the strength of about five hundred (500) persons and three
hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has the strength
of about four hundred (400) persons and three hundred (300) firearms and was reported to
be moving towards Maguindanao to support the Mangudadatu clan in its armed fight against
the Ampatuans.22

In other words, the imminence of violence and anarchy at the time the President issued
Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed
and hostilities in the places mentioned. Progress reports also indicated that there was
movement in these places of both high-powered firearms and armed men sympathetic to the
two clans.23 Thus, to pacify the people’s fears and stabilize the situation, the President had to
take preventive action. She called out the armed forces to control the proliferation of loose
firearms and dismantle the armed groups that continuously threatened the peace and
security in the affected places.