G.R. Nos.

L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner,

vs.
THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents.

Due Process – impartial and competent court

FACTS
Javier and Pacificador, a member of the KBL under Marcos, were rivals to be members of the Batasan in May
1984 in Antique. During election, Javier complained of “massive terrorism, intimidation, duress, vote-buying, fraud,
tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes
perpetrated by the armed men of Pacificador.” COMELEC just referred the complaints to the AFP. On the same
complaint, the 2nd Division of the Commission on Elections directed the provincial board of canvassers of Antique
to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. On
June 7, 1984, the same 2nd Division ordered the board to immediately convene and to proclaim the winner without
prejudice to the outcome of the case before the Commission. On certiorari before the SC, the proclamation made
by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period
of appeal, which the Javier had seasonably made. Javier pointed out that the irregularities of the election must
first be resolved before proclaiming a winner. Further, Opinion, one of the Commissioners should inhibit himself
as he was a former law partner of Pacificador. Also, the proclamation was made by only the 2nd Division but the
Constitute requires that it be proclaimed by the COMELEC en banc. In Feb 1986, during pendency, Javier was
gunned down. The Solicitor General then moved to have the petition close it being moot and academic by virtue
of Javier’s death.

ISSUE:
Whether or not there had been due process in the proclamation of Pacificador.

HELD:
The SC ruled in favor of Javier and has overruled the Sol-Gen’s tenor. The SC has repeatedly and consistently
demanded “the cold neutrality of an impartial judge” as the indispensable imperative of due process. To bolster
that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as
an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They
should be sure that when their rights are violated, they can go to a judge who shall give them justice. They must
trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they
will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice
they expect.

Due process is intended to ensure that confidence by requiring compliance with what Justice Frankfurter calls the
rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a
court already committed to the other party and with a judgment already made and waiting only to be formalized
after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial)
proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the
denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his
conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts
and the pertinent law.
G.R. No. 171396 May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE,
GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR
GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

489 SCRA 160 – Political Law – The Executive Branch – Presidential Proclamation 1017 – Take Care Clause –
Take Over Power – Calling Out Power – Bill of Rights – Freedom of Speech – Overbreadth

FACTS:
In February 2006, due to the escape of some Magdalo members and the discovery of a plan (Oplan Hackle I) to
assassinate the president, then president Gloria Macapagal-Arroyo (GMA) issued Presidential Proclamation 1017
(PP1017) and is to be implemented by General Order No. 5 (GO 5). The said law was aimed to suppress
lawlessness and the connivance of extremists to bring down the government.

Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time revoked all permits issued
for rallies and other public organization/meeting. Notwithstanding the cancellation of their rally permit, Kilusang
Mayo Uno (KMU) head Randolf David proceeded to rally which led to his arrest.

Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided by the CIDG and they seized and
confiscated anti-GMA articles and write ups. Later still, another known anti-GMA news agency (Malaya) was raided
and seized. On the same day, Beltran of Anakpawis, was also arrested. His arrest was however grounded on a
warrant of arrest issued way back in 1985 for his actions against Marcos. His supporters cannot visit him in jail
because of the current imposition of PP 1017 and GO 5.

In March, GMA issued PP 1021 which declared that the state of national emergency ceased to exist. David and
some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be
validly declared by the president for such power is reposed in Congress. Also such declaration is actually a
declaration of martial law. Olivares-Cacho also averred that the emergency contemplated in the Constitution are
those of natural calamities and that such is an overbreadth. Petitioners claim that PP 1017 is an overbreadth
because it encroaches upon protected and unprotected rights. The Sol-Gen argued that the issue has become
moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of PP 1021. The Sol-Gen
averred that PP 1017 is within the president’s calling out power, take care power and take over power.

ISSUE:
Whether or not PP 1017 and GO 5 is constitutional.

HELD:
PP 1017 and its implementing GO are partly constitutional and partly unconstitutional.

The issue cannot be considered as moot and academic by reason of the lifting of the questioned PP. It is still in
fact operative because there are parties still affected due to the alleged violation of the said PP. Hence, the SC
can take cognition of the case at bar. The SC ruled that PP 1017 is constitutional in part and at the same time
some provisions of which are unconstitutional. The SC ruled in the following way;
Resolution by the SC on the Factual Basis of its declaration

The petitioners were not able to prove that GMA has no factual basis in issuing PP 1017 and GO 5. A reading of
the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the
Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and
the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court
is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the
seriousness of the incidents, GMA was not expected to simply fold her arms and do nothing to prevent or suppress
what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must
not stifle liberty.

Resolution by the SC on the Overbreadth Theory

First and foremost, the overbreadth doctrine is an analytical tool developed for testing ‘on their faces’ statutes in
free speech cases. The 7 consolidated cases at bar are not primarily ‘freedom of speech’ cases. Also, a plain
reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually
a call upon the AFP to prevent or suppress all forms of lawless violence. Moreover, the overbreadth doctrine is
not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and
rebellion are considered ‘harmful’ and ‘constitutionally unprotected conduct.’ Thus, claims of facial overbreadth
are entertained in cases involving statutes which, by their terms, seek to regulate only ‘spoken words’ and again,
that ‘overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.’ Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Resolution by the SC on the Calling Out Power Doctrine

On the basis of Sec 17, Art 7 of the Constitution, GMA declared PP 1017. The SC considered the President’s
‘calling-out’ power as a discretionary power solely vested in his wisdom, it stressed that ‘this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of discretion. The SC ruled that GMA has validly declared PP
1017 for the Constitution grants the President, as Commander-in-Chief, a ‘sequence’ of graduated powers. From
the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of
habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the calling-out power
is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless
violence, invasion or rebellion.’ And such criterion has been met.

Resolution by the SC on the Take Care Doctrine

Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution (He shall ensure that the laws be faithfully
executed.) the president declared PP 1017. David et al averred that PP 1017 however violated Sec 1, Art 6 of the
Constitution for it arrogated legislative power to the President. Such power is vested in Congress. They assail the
clause ‘to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction.’ The SC noted that such provision is similar to the power that granted former
President Marcos legislative powers (as provided in PP 1081). The SC ruled that the assailed PP 1017 is
unconstitutional insofar as it grants GMA the authority to promulgate ‘decrees.’ Legislative power is peculiarly
within the province of the Legislature. Sec 1, Article 6 categorically states that ‘[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.’ To be
sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify GMA’[s exercise of legislative
power by issuing decrees. The president can only “take care” of the carrying out of laws but cannot create or enact
laws.

Resolution by the SC on the Take Over Power Doctrine

The president cannot validly order the taking over of private corporations or institutions such as the Daily Tribune
without any authority from Congress. On the other hand, the word emergency contemplated in the constitution is
not limited to natural calamities but rather it also includes rebellion. The SC made a distinction; the president can
declare the state of national emergency but her exercise of emergency powers does not come automatically after
it for such exercise needs authority from Congress. The authority from Congress must be based on the following:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration

The SC ruled that PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a valid exercise of the
calling out power of the president by the president.
G.R. No. 192791 April 24, 2012

DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.

FACTS:
Funa challenges the constitutionality of the appointment of Reynaldo A. Villar as Chairman of the COA.

Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly thereafter,
on June 11, 2008, the Commission on Appointments confirmed his appointment. He was to serve as Chairman of
COA, as expressly indicated in the appointment papers, until the expiration of the original term of his office as
COA Commissioner or on February 2, 2011. Challenged in this recourse, Villar, in an obvious bid to lend color of
title to his hold on the chairmanship, insists that his appointment as COA Chairman accorded him a fresh term of
7 years which is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is up to February
2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to that position.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to President
Benigno S. Aquino III, signified his intention to step down from office upon the appointment of his replacement.
True to his word, Villar vacated his position when President Benigno Simeon Aquino III named Ma. Gracia Pulido-
Tan (Chairman Tan) COA Chairman. This development has rendered this petition and the main issue tendered
therein moot and academic.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of Villar, we
consider the instant case as falling within the requirements for review of a moot and academic case, since it asserts
at least four exceptions to the mootness rule discussed in David vs Macapagal Arroyo namely:
a. There is a grave violation of the Constitution;

b. The case involves a situation of exceptional character and is of paramount public interest;
c. The constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar
and the public;
d. The case is capable of repetition yet evading review.
The procedural aspect comes down to the question of whether or not the following requisites for the exercise of
judicial review of an executive act obtain in this petition, viz:
a. There must be an actual case or justiciable controversy before the court
b. The question before it must be ripe for adjudication;
c. The person challenging the act must be a proper party; and

d. The issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of
the case

ISSUES:
a. WON the petitioner has Locus Standi to bring the case to court
b. WON Villar’s appointment as COA Chairman, while sitting in that body and after having served for four (4)
years of his seven (7) year term as COA commissioner, is valid in light of the term limitations imposed under, and
the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution
HELD:
Issue of Locus Standi: 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.

In David vs Macapagal Arroyo, the Court laid out the bare minimum norm before the so-called “non-traditional
suitors” may be extended standing to sue, thusly:
a. For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
b. For voters, there must be a showing of obvious interest in the validity of the election law in question

c. For concerned citizens, there must be a showing that the issues raised are of transcendental importance
which must be settled early; and
d. For legislators, there must be a claim that the official action complained of infringes their prerogatives as
legislators.
On the substantive issue:
Sec. 1 (2), Art. IX(D) of the Constitution provides that:
(2) The Chairman and Commissioners [on Audit] 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, the
Chairman shall hold office for seven years, one commissioner for five years, and the other commissioner for three
years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of
the predecessor. In no case shall any member be appointed or designated in a temporary or acting capacity.
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes reappointment
of any kind within the commission, the point being that a second appointment, be it for the same position
(commissioner to another position of commissioner) or upgraded position (commissioner to chairperson) is a
prohibited reappointment and is a nullity ab initio.
The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word “reappointment” as, in
context, embracing any and all species of appointment. The rule is that if a statute or constitutional provision is
clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation.
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term of
seven years, and if he has served the full term, then he can no longer be reappointed or extended another
appointment. In the same vein, a Commissioner who was appointed for a term of seven years who likewise served
the full term is barred from being reappointed. In short, once the Chairman or Commissioner shall have served the
full term of seven years, then he can no longer be reappointed to either the position of Chairman or Commissioner.
The obvious intent of the framers is to prevent the president from “dominating” the Commission by allowing him to
appoint an additional or two more commissioners.
On the other hand, the provision, on its face, does not prohibit a promotional appointment from commissioner to
chairman as long as the commissioner has not served the full term of seven years, further qualified by the third
sentence of Sec. 1(2), Article IX (D) that “the appointment to any vacancy shall be only for the unexpired portion
of the term of the predecessor.” In addition, such promotional appointment to the position of Chairman must
conform to the rotational plan or the staggering of terms in the commission membership such that the aggregate
of the service of the Commissioner in said position and the term to which he will be appointed to the position of
Chairman must not exceed seven years so as not to disrupt the rotational system in the commission prescribed
by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional appointment from
Commissioner to Chairman, provided it is made under the aforestated circumstances or conditions.
The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as COA Chairman
gave him a completely fresh 7- year term––from February 2008 to February 2015––given his four (4)-year tenure
as COA commissioner devalues all the past pronouncements made by this Court. While there had been
divergence of opinion as to the import of the word “reappointment,” there has been unanimity on the dictum that
in no case can one be a COA member, either as chairman or commissioner, or a mix of both positions, for an
aggregate term of more than 7 years. A contrary view would allow a circumvention of the aggregate 7-year service
limitation and would be constitutionally offensive as it would wreak havoc to the spirit of the rotational system of
succession.
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly appointed
Villar as COA Chairman, for a full 7- year appointment, as the Constitution decrees, was not legally feasible in
light of the 7-year aggregate rule. Villar had already served 4 years of his 7-year term as COA Commissioner. A
shorter term, however, to comply with said rule would also be invalid as the corresponding appointment would
effectively breach the clear purpose of the Constitution of giving to every appointee so appointed subsequent to
the first set of commissioners, a fixed term of office of 7 years. To recapitulate, a COA commissioner like
respondent Villar who serves for a period less than seven (7) years cannot be appointed as chairman when such
position became vacant as a result of the expiration of the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve more than seven
(7) years under the constitutional ban.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the three constitutional commissions, after the expiration of the uneven
terms of office of the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment
for a lesser period is void and unconstitutional. The appointing authority cannot validly shorten the full term of
seven (7) years in case of the expiration of the term as this will result in the distortion of the rotational system
prescribed by the Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall
only be for the unexpired portion of the term of the predecessor, but such appointments cannot be less than the
unexpired portion as this will likewise disrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).

3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven years
and who served the entire period, are barred from reappointment to any position in the Commission. Corollarily,
the first appointees in the Commission under the Constitution are also covered by the prohibition against
reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired portion of the term of the departing chairman. Such
appointment is not covered by the ban on reappointment, provided that the aggregate period of the length of
service as commissioner and the unexpired period of the term of the predecessor will not exceed seven (7) years
and provided further that the vacancy in the position of Chairman resulted from death, resignation, disability or
removal by impeachment. The Court clarifies that “reappointment” found in Sec. 1(2), Art. IX(D) means a
movement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other
hand, an appointment involving a movement to a different position or office (Commissioner to Chairman) would
constitute a new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.