G.R. No.

L-17169 November 30, 1963

ISIDRO C. ANG-ANGCO, petitioner,
vs.
HON. NATALIO P. CASTILLO, ET AL., respondents.
Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J .:
On October 8, 1956, the Pepsi-Cola Far East Trade Development Co., Inc. wrote a letter to the Secretary
of Commerce and Industry requesting for special permit to withdraw certain commodities from the
customs house which were imported without any dollar allocation or remittance of foreign exchange. Said
commodities consisted of 1,188 units of pepsi-cola concentrates which were not covered by any Central
Bank release certificate. On the same date, the company addressed an identical request to the Secretary of
Finance who was also the Chairman of the Monetary Board of the Central Bank. Senator Pedro Sabido, in
behalf of the company, likewise wrote said official urging that authority be given to withdraw the
abovementioned concentrates. Not content with this step, he also wrote to Dr. Andres Castillo, Acting
Governor of the Central Bank, urging, the same matter. Then Secretary Hernandez wrote another letter to
Dr. Castillo stating, "Senator Sabido is taking this to you personally. Unless we have legal objection, I
would like to authorize the withdrawal of the concentrates upon payment of all charges in pesos. Please
expedite action."
Almost at the same time, the Import-Export Committee of the Central Bank, thru Mr. Gregorio Licaros,
submitted to the Monetary Board a memorandum on the joint petition of the company and Sabido Law
Office for authority to withdraw the concentrates from the customs house stating therein that it sees no
objection to the proposal. The Monetary Board, however, failed to take up the matter in its meeting of
October 12, 1956 for the reason that the transaction did not involve any dollar allocation or foreign
exchange, and of this decision Mr. Licaros was informed.
Having failed to secure the necessary authority from the Central Bank, on October 13, 1956, the counsel
of the Pepsi-Cola Far East Trade Development Co., Inc., approached Collector of Customs Isidro Ang-
Angco in an attempt to secure from him the immediate release of the concentrates, but this official seeing
perhaps that the importation did not carry any release certificate from the Central Bank advised the
counsel to try to secure the necessary release certificate from the No-Dollar Import Office that had
jurisdiction over the case. In the morning of the same day, Mr. Aquiles J. Lopez, of said Office, wrote a
letter addressed to the Collector of Customs stating, among other things, that his office had no objection
to the release of the 1,188 units of concentrates but that it could not take action on the request as "the
same is not within the jurisdiction of the No-Dollar Import Office within the contemplation of R.A. No.
1410." The counsel already referred to above showed the letter to Collector of Customs Ang-Angco who
upon perusing it still hesitated to grant the release. Instead he suggested that the letter be amended in
order to remove the ambiguity appearing therein, but Mr. Lopez refused to amend the letter stating that
the same was neither a permit nor a release. Secretary of Finance Hernandez having been contacted by
telephone, Collector of Customs Ang-Angco read to him the letter after which the Secretary verbally
expressed his approval of the release on the basis of said certificate. Collector Ang-Angco, while still in
doubt as to the propriety of the action suggested, finally authorized the release of the concentrates upon
payment of the corresponding duties, customs charges, fees and taxes.
When Commissioner of Customs Manuel P. Manahan learned of the release of the concentrates in
question he immediately ordered their seizure but only a negligible portion thereof remained in the
warehouse. Whereupon, he filed an administrative complaint against Collector of Customs Ang-Angco
charging him with having committed a grave neglect of duty and observed a conduct prejudicial to the
best interest of the customs service. On the strength of this complaint President Ramon Magsaysay
constituted an investigating committee to investigate Ang-Angco composed of former Solicitor General
Ambrosio Padilla, as Chairman, and Atty. Arturo A. Alafriz and Lt. Col. Angel A. Salcedo, as members.
Together with Collector Ang-Angco, Mr. Aquiles J. Lopez, was also investigated by the same Committee,
who was also charged in a separate complaint with serious misconduct in office or conduct prejudicial to
the best interest of the State. As a result, Collector Ang-Angco was suspended from office in the latter
part of December, 1956.
After the investigation, the committee submitted to President Magsaysay its report recommending that a
suspension of 15 days, without pay, be imposed upon Ang-Angco chargeable against the period of his
suspension. On April 1, 1957, Collector Ang-Angco was reinstated to his office by Secretary Hernandez,
but the decision on the administrative case against him remained pending until the death of President
Magsaysay. After around three years from the termination of the investigation during which period Ang-
Angco had been discharging the duties of his office, Executive Secretary Natalio P. Castillo, by authority
of the President, rendered a decision on the case on February 12, 1960 finding Ang-Angco "guilty of
conduct prejudicial to the best interest of the service", and considering him resigned effective from the
date of notice, with prejudice to reinstatement in the Bureau of Customs.
Upon learning said decision from the newspapers, Collector Ang-Angco wrote a letter to President Carlos
P. Garcia calling attention to the fact that the action taken by Secretary Castillo in removing him from
office had the effect of depriving him of his statutory right to have his case originally decided by the
Commissioner of Civil Service, as well as of his right of appeal to the Civil Service Board of Appeals,
whose decision under Republic Act No. 2260 is final, besides the fact that such decision is in violation of
the guaranty vouchsafed by the Constitution to officers or employees in the civil service against removal
or suspension except for cause in the manner provided by law.
In a letter dated February 16, 1960, Secretary Castillo, also by authority of the President, denied the
request for reconsideration. Not satisfied with this resolution, Collector Ang-Angco sent a memorandum
to President Garcia reiterating once more the same grounds on which he predicated his request for
reconsideration. Again Secretary Castillo, also by authority of the President, in letter dated July 1, 1960,
denied the appeal. In this instance, Secretary Castillo asserted that the President virtue of his power of
control over all executive departments, bureaus and offices, can take direct action and dispose of the
administrative case in question inasmuch as the provisions of law that would seem to vest final authority
in subordinate officers of the executive branch of the government over administrative matters falling
under their jurisdiction cannot divest the President of his power of control nor diminish the same.
Hence, after exhausting all the administrative remedies available to him to secure his reinstatement to the
office from which he was removed without any valid cause or in violation of his right to due process of
law, Collector Ang-Angco filed before this Court the present petition for certiorari, prohibition and
mandamus with a petition for the issuance of a preliminary mandatory injunction. The Court gave due
course to the petition, but denied the request for injunction.
The main theme of petitioner is that respondent Executive Secretary Natalio P. Castillo in acting on his
case by authority of the President in the sense of considering him as resigned from notice thereof, violated
the guaranty vouchsafed by the Constitution to officers and employees in the classified service in that he
acted in violation of Section 16 (i) of the Civil Service Act of 1959 which vests in the Commissioner of
Civil Service the original and exclusive jurisdiction to decide administrative cases against officers and
employees in the classified service, deprived him of his right of appeal under Section 18 (b) of the same
Act to the Civil Service Board of Appeals whose decision on the matter is final, and removed him from
the service without due process in violation of Section 32 of the same Act which expressly provides that
the removal or suspension of any officer or employee from the civil service shall be accomplished only
after due process, and of Section 4, Article XII of our Constitution which provides that "No officer or
employee in the civil service shall be removed except for cause as provided for by law." Since petitioner
is an officer who belongs to the classified civil service and is not a presidential appointee, but one
appointed by the Secretary of Finance under the Revised Administrative Code, he cannot be removed
from the service by the President in utter disregard of the provisions of the Civil Service Act of 1959.
Respondents, on their part, do not agree with this theory entertained by petitioner. They admit that if the
theory is to be considered in the light of the provisions of the Civil Service Act of 1959, the same may be
correct, for indeed the Civil Service Law as it now stands provides that all officers and employees who
belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil
Service and as such all administrative cases against them shall be indorsed to said official whose decision
may be appealed to the Civil Service Board of Appeals from whose decision no further appeal can be
taken. They also admit that petitioner belongs to the classified civil service. But it is their theory that the
pertinent provisions of the Civil Service Law applicable to employees in the classified service do not
apply to the particular case of petitioner since to hold otherwise would be to deprive the President of his
power of control over the officers and employees of the executive branch of the government. In other
words, respondents contend that, whether the officers or employees concerned are presidential appointees
or belong to the classified service, if they are all officers and employees in the executive department, they
all come under the control of the President and, therefore, his power of removal may be exercised over
them directly without distinction. Indeed, respondents contend that, if, as held in the case ofNegado v.
Castro, 55 O.G., 10534, the President may modify or set aside a decision of the Civil Service Board of
Appeals at the instance of the office concerned, or the respondent employee, or may even do so motu
propio, there would be in the final analysis no logical difference between removing petitioner by direct
action of the President and separating him from the service by ultimate action by the President should an
appeal be taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he
may motu proprio consider it necessary to review the Board's decision. It is contended that this ruling still
holds true in spite of the new provision wrought into the law by Republic Act 2260 which eliminated the
power of review given to the President because the power of control given by the Constitution to the
President over officers and employees in the executive department can only be limited by the Constitution
and not by Congress, for to permit Congress to do so would be to diminish the authority conferred on the
President by the Constitution which is tantamount to amending the Constitution itself (Hebron v. Reyes,
L- 9124, July 28, 1958). Indeed this is the argument invoked by respondent Castillo in taking direct action
against petitioner instead of following the procedure outlined in the Civil Service Act of 1959 as may be
seen from the following portion of his decision.
In connection with the second ground advanced in support of your petition, it is contended that in
deciding the case directly, instead of transmitting it to the Commissioner of Civil Service for original
decision, his Office deprived the respondent of his right to appeal to the Civil Service Board of Appeals.
This contention overlooks the principle that the President may modify or set aside a decision of the Civil
Service Board of Appeals at the instance of either the office concerned or the respondent employee, or
may even do so motu proprio (Negado vs. Castro, 55 O.G, No. 51, p. 10534, Dec. 21, 1959). There would
therefore be no difference in effect between direct action by the President and ultimate action by him
should an appeal be taken from the decision of the Commissioner of Civil Service or the Civil Service
Board of Appeals. The result is that the President's direct action would be the final decision that would be
reached in case an appeal takes its due course.
Thus, we see that the main issue involved herein is whether the President has the power to take direct
action on the case of petitioner even if he belongs to the classified service in spite of the provisions now
in force in the Civil Service Act of 1959. Petitioner sustains the negative contending that the contrary
view would deprive him of his office without due process of law while respondents sustain the affirmative
invoking the power of control given to the President by the Constitution over all officers and employees,
belonging to the executive department.
To begin with, we may state that under Section 16 (i) of the Civil Service Act of 1959 it is the
Commissioner of Civil Service who has original and exclusive jurisdiction to decide administrative cases
of all officers and employees in the classified service for in said section the following is provided:
"Except as otherwise provided by law, (the Commissioner shall) have final authority to pass upon the
removal, separation and suspension of all permanent officers and employees in the competitive or
classified service and upon all matters relating to the employees." The only limitation to this power is that
the decision of the Commissioner may be appealed to the Civil Service Board of Appeals, in which case
said Board shall decide the appeal within a period of 90 days after the same has been submitted for
decision, whose decision in such case shall be final (Section 18, Republic Act 2260). It should be noted
that the law as it now stands does not provide for any appeal to the President, nor is he given the power to
review the decision motu proprio, unlike the provision of the previous law, Commonwealth Act No. 598,
which was expressly repealed by the Civil Service Act of 1959 (Rep. Act 2260), which provides that the
decision of the Civil Service Board of Appeals may be reversed or modified motu proprio by the
President. It is, therefore, clear that under the present provision of the Civil Service Act of 1959, the case
of petitioner comes under the exclusive jurisdiction of the Commissioner of Civil Service, and having
been deprived of the procedure laid down therein in connection with the investigation and disposition of
his case, it may be said that he has been deprived of due process as guaranteed by said law.
It must, however, be noted that the removal, separation and suspension of the officers and employees of
the classified service are subject to the saving clause "Except as otherwise provided by law" (Section 16
[i], Republic Act No. 2260). The question then may be asked: Is the President empowered by any other
law to remove officers and employees in the classified civil service?
The only law that we can recall on the point is Section 64 (b) of the Revised Administrative Code, the
pertinent portion of which we quote:
(b) To remove officials from office conformably to law and to declare vacant the offices held by such
removed officials. For disloyalty to the (United States) Republic of the Philippines, the (Governor-
General) President of the Philippines may at any time remove a person from any position of trust or
authority under the Government of the (Philippine Islands) Philippines.
The phrase "conformably to law" is significant. It shows that the President does not have blanket
authority move any officer or employee of the government but his power must still be subject to the law
that passed by the legislative body particularly with regard the procedure, cause and finality of the
removal of persons who may be the subject of disciplinary action. Here, as above stated we have such law
which governs action to be taken against officers and employees in classified civil service. This law is
binding upon President.
Another provision that may be mentioned is Section (D) of the Revised Administrative Code, which
provides:
Power to appoint and remove. The Department Head, the recommendation of the chief of the Bureau
or office concerned, shall appoint all subordinate officers and employees appointment is not expressly
vested by law in the (Governor-General) President of the Philippines, and may remove or punish them,
except as especially provided otherwise, in accordance the Civil Service Law.
The phrase "in accordance with the Civil Service is also significant. So we may say that even granting for
administrative purposes, the President of the Philippines is considered as the Department Head of the
Civil Service Commission, his power to remove is still subject to the Civil Service Act of 1959, and we
already know with regard to officers and employees who belong to classified service the finality of the
action is given to the Commissioner of Civil Service or the Civil Board of Appeals.
Let us now take up the power of control given to President by the Constitution over all officers and
employees in the executive department which is now in by respondents as justification to override the
specific visions of the Civil Service Act. This power of control couched in general terms for it does not
set in specific manner its extent and scope. Yes, this Court in the case of Hebron v. Reyes, supra, had
already occasion to interpret the extent of such power to mean "the power of an officer 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 for that of the latter,"
1
to distinguish it from the power of general
supervision over municipal government, but the decision does not go to the extent of including the power
to remove an officer or employee in the executive department. Apparently, the power merely applies to
the exercise of control over the acts of the subordinate and not over the actor or agent himself of the act. It
only means that the President may set aside the judgment or action taken by a subordinate in the
performance of his duties.
That meaning is also the meaning given to the word "control" as used in administrative law. Thus, the
Department Head pursuant to Section 79(C) is given direct control of all bureaus and offices under his
department by virtue of which he may "repeal or modify decisions of the chiefs of said bureaus or
offices", and under Section 74 of the same Code, the President's control over the executive department
only refers to matters of general policy. The term "policy" means a settled or definite course or method
adopted and followed by a government, body, or individual,
2
and it cannot be said that the removal of an
inferior officer comes within the meaning of control over a specific policy of government.
But the strongest argument against the theory of respondents is that it would entirely nullify and set at
naught the beneficient purpose of the whole civil service system implanted in this jurisdiction, which is to
give stability to the tenure of office of those who belong to the classified service, in derogation of the
provisions of our Constitution which provides that "No officer or employee in the civil service shall be
removed or suspended except for cause as provided by law" (Section 4, Article XII, Constitution).Here,
we have two provisions of our Constitution which are apparently in conflict, the power of control by the
President embodied in Section 10 (1), Article VII, and the protection extended to those who are in the
civil service of our government embodied in Section 4, Article XII. It is our duty to reconcile and
harmonize these conflicting provisions in a manner that may give to both full force and effect and the
only logical, practical and rational way is to interpret them in the manner we do it in this decision. As this
Court has aptly said in the case of Lacson v. Romero:
... To hold that civil service officials hold their office at the will of the appointing power subject to
removal or forced transfer at any time, would demoralize and undermine and eventually destroy the whole
Civil Service System and structure. The country would then go back to the days of the old Jacksonian
Spoils System under which a victorious Chief Executive, after the elections could if so minded, sweep out
of office, civil service employees differing in Political color or affiliation from him, and sweep in his
Political followers and adherents, especially those who have given him help, political or otherwise.
(Lacson v. Romero, 84 Phil. 740, 754)
There is some point in the argument that the Power of control of the President may extend to the Power to
investigate, suspend or remove officers and employees who belong to the executive department if they are
presidential appointees or do not belong to the classified service for such can be justified under the
principle that the power to remove is inherent in the power to appoint (Lacson V. Romero, supra), but not
with regard to those officers or employees who belong to the classified service for as to them that inherent
power cannot be exercised. This is in line with the provision of our Constitution which says that "the
Congress may by law vest the appointment of the inferior officers, in the President alone, in the courts, or
in heads of department" (Article VII, Section 10 [3], Constitution). With regard to these officers whose
appointments are vested on heads of departments, Congress has provided by law for a procedure for their
removal precisely in view of this constitutional authority. One such law is the Civil Service Act of 1959.
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of
departments it may limit and restrict power of removal as it seem best for the public interest. The
constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and
regulate the removal by such laws as Congress may enact in relation to the officers so appointed. The
head of a department has no constitutional prerogative of appointment to officers independently of
legislation of Congress, and by such legislation he must be governed, not only in making appointments
but in all that is incident thereto. (U.S. v. Perkins, 116 U.S. 483)
In resume, we may conclude that the action taken by respondent Executive Secretary, even with the
authority of the President, in taking direct action on the administrative case of petitioner, without
submitting the same to the Commissioner of Civil Service, is contrary to law and should be set aside.
WHEREFORE, it is hereby ordered that petitioner be immediately reinstated to his office as Collector of
Customs for the Port of Manila, without prejudice of submitting his case to the Commissioner of Civil
Service to be dealt with in accordance with law. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Parades, Dizon, Regala and Makalintal, JJ.,
concur.

G.R. No. 192935 December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.
D E C I S I O N
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. Laurel
1

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed
among the several departments.
2
The Constitution is the basic and paramount law to which all other laws
must conform and to which all persons, including the highest officials of the land, must defer.
3

Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much more tailor itself to the whims and
caprices of government and the people who run it.
4

For consideration before the Court are two consolidated cases
5
both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress under Section 1, Article VI of the Constitution
6
as it
usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor.
7

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption
with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity
and of his ability to carry out this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the peoples
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
peoples faith and confidence in the Government and in their public servants;
WHEREAS, the Presidents 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 countrys 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
"Commissions 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 Africas 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
12
puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget
about the wrongs that they have committed in the past, we have this to say: There can be no reconciliation
without justice. When we allow crimes to go unpunished, we give consent to their occurring over and
over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized
them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot
legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office
of the President to achieve economy, simplicity and efficiency does not include the power to create an
entirely new public office which was hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
international practice of four decades wherein States constitute truth commissions to 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 Presidents
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. 1416
16
(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 latters 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 commissions 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 Presidents 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 plaintiffs 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 taxpayers
suit is in a different category from the plaintiff in a citizens 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,
howeverthe people are the real partiesIt 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 taxpayers 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 inTileston 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 importance
28
laid down in CREBA v. ERC and
Meralco
29
are non-existent in this case. The Court, however, finds reason in Biraogos 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
Presidents 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 presumed
32
since there is no provision in the
Constitution or any specific law that authorizes the President to create a truth commission.
33
He adds that
Section 31 of the Administrative Code of 1987, granting the President the continuing authority to
reorganize his office, cannot serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
"abolish."
34
Insofar as it vests in the President the plenary power to reorganize the Office of the President
to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of
powers enshrined in the Constitution and must be deemed repealed upon the effectivity thereof.
35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within
the province of Congress and not with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code:
1) does not permit the President to create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper, transfer of functions and transfer
of agencies; and 4) only to achieve simplicity, economy and efficiency.
36
Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of a
fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the Office of the President Proper
has long been recognized.
37
According to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise of its administrative
functions.
38
This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.
39

It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials.
40
The power of the
President to investigate is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his power to discipline
subordinates,
41
his power for rule making, adjudication and licensing purposes
42
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 Presidents
continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the Presidents 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 Presidents 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 Presidents 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 ofspecific 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 Executives 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 Presidents 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 Cario 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 Ombudsmans 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 PTCs 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 Ombudsmans 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 peoples 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 states jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution
through the states 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 ofreasonableness. 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'
Union
85
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."
89
The reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."
90

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents
and cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is
the PTC expected to conduct simultaneous investigations of previous administrations, given the bodys
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 centurys 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. Whilereasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,
92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by
public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority administered.
93
Laws that do not conform
to the Constitution should be stricken down for being unconstitutional.
94
While the thrust of the PTC is
specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must
be read together with the provisions of the Constitution. To exclude the earlier administrations in the
guise of "substantial distinctions" would only confirm the petitioners lament that the subject executive
order is only an "adventure in partisan hostility." In the case of US v. Cyprian,
95
it was written: "A rather
limited number of such classifications have routinely been held or assumed to be arbitrary; those include:
race, national origin, gender, political activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.
96
"Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such a nature as to embrace all those who may thereafter be in similar circumstances
and conditions. Furthermore, all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the members of the class must be
brought under the influence of the law and treated by it in the same way as are the members of the
class."
97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the
equal protection clause."
98
"Legislation is not unconstitutional merely because it is not all-embracing and
does not include all the evils within its reach."
99
It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply because it happens to be incomplete.
100

In several instances, the underinclusiveness was not considered a valid reason to strike down a law or
regulation where the purpose can be attained in future legislations or regulations. These cases refer to the
"step by step" process.
101
"With regard to equal protection claims, a legislature does not run the risk of
losing the entire remedial scheme simply because it fails, through inadvertence or otherwise, to cover
every evil that might conceivably have been attacked."
102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked
out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three
times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention
any particular act, event or report to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and intentional discrimination."
103

To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during the
previous administration.
104
The OSG points to Section 17 of Executive Order No. 1, which provides:
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 nations thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that "includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the
other. Many times the Court has been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit:
"And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them."
107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of government is done in consonance with the authorities
and rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise,
the Court will not be deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards
the betterment of the nation and its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.
108
The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must
not be allowed to sap its strength nor greed for power debase its rectitude."
109

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

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.

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.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide,
Jr., Romero and Nocon, JJ., concur.
Bellosillo, J., took no part.

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 ORDOEZ, 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, 1988
1
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.
83815
3
and as Annex "B" in G.R. No. 83896
4
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
Ordoez, 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 1987
9
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. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q. Pea 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-visSection 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 Constitution
18
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-officio
member 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
required
22
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-officio Chairman 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 Authority
34
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 fail
42
as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates 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 Government
45
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.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Sarmiento and Grio-Aquino, JJ., took no part.
G.R. No. 191002 April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.

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

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

G.R. No. 191032

JAIME N. SORIANO, Petitioner,

vs.

JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.

JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

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

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P.
MENDOZA, Petitioner,

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

G.R. No. 191149

JOHN G. PERALTA, Petitioner,

vs.

JUDICIAL AND BAR COUNCIL (JBC). Respondent.

PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLES LAWYERS; MARLOU B.
UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO
P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN
FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG
PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN
MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF
THE PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-
OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q.
PIMENTEL, JR.;Intervenors.

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

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern Visayas), Petitioners,

vs.

JUDICIAL AND BAR COUNCIL (JBC), Respondent.

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

G.R. No. 191420

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.

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

R E S O L U T I O N

BERSAMIN, J .:

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

WHEREFORE, the Court:

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

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

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

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

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

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

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

SO ORDERED.

Motions for Reconsideration

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

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

Soriano

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

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

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

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial appointments from the express ban on midnight
appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions when none exists.

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

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary the terms of the clear prohibition.

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

6. Valenzuela should not be reversed.

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

Philippine Bar Association

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

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

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight appointments.

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

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

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

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

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

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

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

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

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

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

IBP-Davao del Sur, et al.

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

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

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

Lim

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

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

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

Corvera

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

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

3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization and physical arrangement, especially considering
that the Constitution must be interpreted as a whole.

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

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

BAYAN, et al.

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

2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of Justice Regalado.

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

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

Tan, Jr.

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

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

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

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill any vacancy lasts until August 15, 2010, or a month
and a half after the end of the ban. The next President has roughly the same time of 45 days as the incumbent President (i.e. , 44 days) within which to
scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees without haste
and political uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The directive to the JBC sanctions a culpable violation of the
Constitution and constitutes an election offense.

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

WTLOP

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

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

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

Ubano

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

2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement of its provisions.

3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent records of the Constituti onal Commission are clear and
unambiguous.

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

Boiser

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

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

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

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is prohibited from making within the prescribed period.
Plain textual reading and the records of the Constitutional Commission support the view that the ban on midnight appointments extends to judicial
appointments.

2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must first act not in accord with prescribed rules before the
act can be redone to conform to the prescribed rules.

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

Pimentel

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

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

Comments

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

OSG

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

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

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

4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on midnight appointments. 1awph!1

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

JBC

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

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

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

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

1. The grounds of the motions for reconsideration were already resolved by the decision and the separate opinion.

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

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

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

Ruling

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

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

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

The contention has no basis.

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

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

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

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

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

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

Section 13. xxx

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

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

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

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

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

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

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

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

Final Word

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

The insinuation is misguided and utterly unfair.

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

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.

LUCAS P. BERSAMIN

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

ANTONIO T. CARPIO

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice


Footnotes

1 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, A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.

2 Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962), 9.7.

3 Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247

4 E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.

5 Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September 5, 1996, 261 SCRA 464.

6 See Calabresi, A Common Law for the Age of Statutes, Harvard University Press, p. 4 (1982) and endnote 12 of the page, which essentially recounts that
the strict application of the doctrine of stare decisis is true only in a common-law jurisdiction like England (citing Wise, The Doctrine of Stare Decisis, 21
Wayne Law Review, 1043, 1046-1047 (1975). Calabresi recalls that the English House of Lords decided in 1898 (London Tramways Co. v. London County
Council, A.C. 375) that they could not alter precedents laid down by the House of Lords acting as the supreme court in previous cases, but that such
precedents could only be altered by an Act of Parliament, for to do otherwise would mean that the courts would usurp legislative function; he mentions that
in 1966, Lord Chancellor Gardiner announced in a Practice Statement a kind of general memorandum from the court that while: "Their Lordships regard
the use of precedent as an indispensable foundation upon which to decide what is the law," they "nevertheless recognize that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their
present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so."
(Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls, 80 Harvard Law Review, 797 (1967).

7 Section 4 (2), Article VIII, provides:

xxx

(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required
number is not obtained, the case shall be decided en banc; Provided, that 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.

8 Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No. 44. pp. 542-543.

9 Smith v. State, 66 Md. 215, 7 Atl. 49.

10 State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.


The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO MORALES, J .:

No compelling reason exists for the Court to deny a reconsideration of the assailed Decision. The various motions for reconsideration raise hollering
substantial arguments and legitimately nagging questions which the Court must meet head on.

If this Court is to deserve or preserve its revered place not just in the hierarchy but also in history, passion for reason demands the issuance of an extended
and extensive resolution that confronts the ramifications and repercussions of its assailed Decision. Only then can it offer an illumination that any self-
respecting student of the law clamors and any adherent of the law deserves. Otherwise, it takes the risk of reeking of an objectionable air of supreme judicial
arrogance.

It is thus imperative to settle the following issues and concerns:

Whether the incumbent President is constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May
17, 2010 until the ban ends at 12:00 noon of June 30, 2010

1. In interpreting the subject constitutional provisions, the Decision disregarded established canons of statutory construction. Without explaining the
inapplicability of each of the relevant rules, the Decision immediately placed premium on the arrangement and ordering of provisions, one of the weakest
tools of construction, to arrive at its conclusion.

2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not firmly rest on ConCom deliberations, yet it did not offer to cite a material
ConCom deliberation. It instead opted to rely on the memory of Justice Florenz Regalado which incidentally mentioned only the "Court of Appeals. " The
Decisions conclusion must rest on the strength of its own favorable Concom deliberation, none of which to date has been cited.

3. Instead of choosing which constitutional provision carves out an exception from the other provision, the most legally feasible interpretation (in the limited
cases of temporary physical or legal impossibility of compliance, as expounded in my Dissenting Opinion) is to consider the appointments ban or other
substantial obstacle as a temporary impossibility which excuses or releases the constitutional obligation of the Office of the President for the duration of the
ban or obstacle.

In view of the temporary nature of the circumstance causing the impossibility of performance, the outgoing President is released from non-fulfillment of the
obligation to appoint, and the duty devolves upon the new President. The delay in the fulfillment of the obligation becomes excusable, since the law cannot
exact compliance with what is impossible. The 90-day period within which to appoint a member of the Court is thus suspended and the period could only
start or resume to run when the temporary obstacle disappears (i.e., after the period of the appointments ban; when there is already a quorum in the JBC;
or when there is already at least three applicants).

Whether the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the position of Chief Justice (or Justice of this
Court) on or before the occurrence of the vacancy.

1. The ruling in the Decision that obligates the JBC to submit the shortlist to the President on or before the occurrence of the vacancy in the Court runs
counter to the Concom deliberations which explain that the 90-day period is allotted for both the nomination by the JBC and the appointment by the
President. In the move to increase the period to 90 days, Commissioner Romulo stated that "[t]he sense of the Committee is that 60 days is awfully short and
that the [Judicial and Bar] Council, as well as the President, may have difficulties with that."

2. To require the JBC to submit to the President a shortlist of nominees on or before the occurrence of vacancy in the Court leads to preposterous results. It
bears reiterating that the requirement is absurd when,inter alia, the vacancy is occasioned by the death of a member of the Court, in which case the JBC
could never anticipate the death of a Justice, and could never submit a list to the President on or before the occurrence of vacancy.

3. The express allowance in the Constitution of a 90-day period of vacancy in the membership of the Courtrebuts any public policy argument on avoiding a
vacuum of even a single day without a duly appointed Chief Justice. Moreover, as pointed out in my Dissenting Opinion, the practice of having an acting
Chief Justice in the interregnum is provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal matter.

The Resolution of the majority, in denying the present Motions for Reconsideration, failed to rebut the foregoing crucial matters.

I, therefore, maintain my dissent and vote to GRANT the Motions for Reconsideration of the Decision of March 17, 2010 insofar as it holds that the
incumbent President is not constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010
until the ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar Council is obliged to submit to the President the shortlist of nominees for the
position of Chief Justice on or before May 17, 2010.

CONCHITA CARPIO MORALES

Associate Justice


The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J .:

The Motions for Reconsideration

After sifting through the motions for reconsideration, I found that the arguments are largely the same arguments that we have passed upon, in one form or
another, in the various petitions. Essentially, the issues boil down to justiciability; the conflict of constitutional provisions; the merits of the cited
constitutional deliberations; and the status and effect of the Valenzuela1 ruling. Even the motion for reconsideration of the Philippine Bar Association (G.R.
No. 191420), whose petition I did not expressly touch upon in my Separate Opinion, basically dwells on these issues.

I have addressed most, if not all, of these issues and I submit my Separate Opinion2 as my basic response to the motions for reconsideration, supplemented
by the discussions below.

As I reflected in my Separate Opinion (which three other Justices joined),3 the election appointment ban under Article VII, Section 15 of the Constitution
should not apply to the appointment of Members of the Supreme Court whose period for appointment is separately provided for under Article VIII, Section
4(1). I shared this conclusion with the Courts Decision although our reasons differed on some points.

I diverged fully from the Decision on the question of whether we should maintain or reverse our ruling in Valenzuela. I maintained that it is still good law;
no reason exists to touch the ruling as its main focus the application of the election ban on the appointment of lower court judges under Article VIII,
Section 9 of the Constitution is not even an issue in the present case and was discussed only because the petitions incorrectly cited the ruling as authority on
the issue of the Chief Justices appointment. The Decision proposed to reverse Valenzuela but only secured the support of five (5) votes, while my Separate
Opinion in support of Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in reversing Valenzuela, as it only had five (5) votes in a
field of 12 participating Members of the Court. Valenzuela should therefore remain, as of the filing of this Opinion, as a valid precedent.

Acting on the present motions for reconsideration, I join the majority in denying the motions with respect to the Chief Justice issue, although we differ in
some respects on the reasons supporting the denial. I dissent from the conclusion that the Valenzuela ruling should be reversed. My divergence from the
majoritys reasons and conclusions compels me to write this Concurring and Dissenting Opinion.

The Basic Requisites / Justiciability

One marked difference between the Decision and my Separate Opinion is our approach on the basic requisites/justiciability issues. The Decision apparently
glossed over this aspect of the case, while I fully explained why the De Castro4 and Peralta5 petitions should be dismissed outright. In my view, these
petitions violated the most basic requirements of their chosen medium for review a petition for certiorari and mandamus under Rule 65 of the Rules of
Court.

The petitions commonly failed to allege that the Judicial and Bar Council (JBC) performs judicial or quasi-judicial functions, an allegation that the petitions
could not really make, since the JBC does not really undertake these functions and, for this reason, cannot be the subject of a petition for certiorari; hence,
the petitions should be dismissed outright. They likewise failed to facially show any failure or refusal by the JBC to undertake a constitutional duty to justify
the issuance of a writ of mandamus; they invoked judicial notice that we could not give because there was, and is, no JBC ref usal to act.6 Thus, the
mandamus aspects of these petitions should have also been dismissed outright. The ponencia, unfortunately, failed to fully discuss these legal infirmities.

The motions for reconsideration lay major emphasis on the alleged lack of an actual case or controversy that made the Chief Justices appointment a
justiciable issue. They claim that the Court cannot exercise the power of judicial review where there is no clash of legal rights and interests or where this
clash is merely anticipated, although the anticipated event shall come with certainty.7

What the movants apparently forgot, focused as they were on their respective petitions, is that the present case is not a single-petition case that rises or falls
on the strength of that single petition. The present case involves various petitions and interventions,8 not necessarily pulling towards the same direction,
although each one is focused on the issue of whether the election appointment ban under Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.

Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first two are
petitions for prohibition under Section 2 of Rule 65 of the Rules of Court.9While they commonly share this medium of review, they differ in their supporting
reasons. The Mendoza petition, on the other hand, is totally different it is a petition presented as an administrative matter (A.M.) in the manner that the
Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion, the Court uses the A.M. docket designation on matters relating to its exercise of
supervision over all courts and their personnel.10 I failed to note then, but I make of record now, that court rules and regulations the outputs in the
Courts rulemaking function are also docketed as A.M. cases.

That an actual case or controversy involving a clash of rights and interests exists is immediately and patently obvious in the Tolentino and Soriano petitions.
At the time the petitions were filed, the JBC had started its six-phase nomination process that would culminate in the submission of a list of nominees to the
President of the Philippines for appointive action. Tolentino and Soriano lawyers and citizens with interest in the strict observance of the election ban
sought to prohibit the JBC from continuing with this process. The JBC had started to act, without any prodding from the Court, because of its duty to start
the nomination process but was hampered by the petitions filed and the legal questions raised that only the Supreme Court can settle with finality.11 Thus, a
clash of interests based on law existed between the petitioners and the JBC. To state the obvious, a decision in favor of Tolentino or Soriano would result in a
writ of prohibition that would direct the JBC not to proceed with the nomination process.

The Mendoza petition cited the effect of a complete election ban on judicial appointments (in view of the already high level of vacancies and the backlog of
cases) as basis, and submitted the question as an administrative matter that the Court, in the exercise of its supervisory authority over the Judiciary and the
JBC itself, should act upon. At the same time, it cited the "public discourse and controversy" now taking place because of the application of the election ban
on the appointment of the Chief Justice, pointing in this regard to the very same reasons mentioned in Valenzuela about the need to resolve the issue and
avoid the recurrence of conflict between the Executive and the Judiciary, and the need to "avoid polemics concerning the matter."12

I recognized in the Separate Opinion that, unlike in Valenzuela where an outright defiance of the election ban took place, no such obvious triggering event
transpired in the Mendoza petition.13 Rather, the Mendoza petition looked to the supervisory power of the Court over judicial personnel and over the JBC
as basis to secure a resolution of the election ban issue. The JBC, at that time, had indicated its intent to look up to the Courts supervisory power and role as
the final interpreter of the Constitution to guide it in responding to the challenges it confronts. 14 To me, this was "a point no less critical, from the point of
view of supervision, than the appointment of the two judges during the election ban period in Valenzuela."15

In making this conclusion, I pointed out in my Separate Opinion the unavoidable surrounding realities evident from the confluence of events, namely: (1) an
election to be held on May 10, 2010; (2) the retirement of the Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective officials from the
President to the congressmen on June 30, 2010; (4) the delay before the Congress can organize and send its JBC representatives; and (5) the expiration of the
term of a non-elective JBC member in July 2010.16 All these juxtaposed with the Courts supervision over the JBC, the latters need for guidance, and the
existence of an actual controversy on the same issues bedeviling the JBC in my view, were sufficient to save the Mendoza petition from being a mere
request for opinion or a petition for declaratory relief that falls under the jurisdiction of the lower court. This recognition is beyond the level of what this
Court can do in handling a moot and academic case usually, one that no longer presents a judiciable controversy but one that can still be ruled upon at the
discretion of the court when the constitutional issue is of paramount public interest and controlling principles are needed to guide the bench, the bar and the
public.17

To be sure, this approach in recognizing when a petition is actionable is novel. An overriding reason for this approach can be traced to the nature of the
petition, as it rests on the Courts supervisory authority and relates to the exercise of the Courts administrative rather than its judicial functions (other than
these two functions, the Court also has its rulemaking function under Article VIII, Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition
calls for directions from the Court in the exercise of its power of supervision over the JBC,18 not on the basis of the power of judicial review.19 In this sense,
it does not need the actual clash of interests of the type that a judicial adjudication requires. All that must be shown is the active need for supervision to
justify the Courts intervention as supervising authority.

Under these circumstances, the Courts recognition of the Mendoza petition was not an undue stretch of its constitutional powers. If the recognition is
unusual at all, it is so only because of its novelty; to my knowledge, this is the first time ever in Philippine jurisprudence that the supervisory authority of the
Court over an attached agency has been highlighted in this manner. Novelty, per se, however, is not a ground for objection nor a mark of infirmity for as
long as the novel move is founded in law. In this case, as in the case of the writ of amparo and habeas data that were then novel and avowedly activist in
character, sufficient legal basis exists to actively invoke the Courts supervisory authority granted under the Constitution, no less as basis for action.

To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5) provide that "A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court It may exercise such other functions and duties as the Supreme Court may assign to it." Supervision, as a legal concept,
more often than not, is defined in relation with the concept of control.20 In Social Justice Society v. Atienza,21 we defined "supervision" as follows:

[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.

Under this definition, the Court cannot dictate on the JBC the results of its assigned task, i.e., who to recommend or what standards to use to determine who
to recommend. It cannot even direct the JBC on how and when to do its duty, but it can, under its power of supervision, direct the JBC to "take such action
or step as prescribed by law to make them perform their duties," if the duties are not being performed because of JBCs fault or inaction, or because of
extraneous factors affecting performance. Note in this regard that, constitutionally, the Court can also assign the JBC other functions and duties a power
that suggests authority beyond what is purely supervisory.

Where the JBC itself is at a loss on how to proceed in light of disputed constitutional provisions that require interpretation,22 the Court is not legally out of
line as the final authority on the interpretation of the Constitution and as the entity constitutionally-tasked to supervise the JBC in exercising its
oversight function by clarifying the interpretation of the disputed constitutional provision to guide the JBC. In doing this, the Court is not simply rendering
a general legal advisory; it is providing concrete and specific legal guidance to the JBC in the exercise of its supervisory authority, after the latter has asked
for assistance in this regard. That the Court does this while concretely resolving actual controversies (the Tolentino and Soriano petitions) on the same issue
immeasurably strengthens the intrinsic correctness of the Courts action.

It may be asked: why does the Court have to recognize the Mendoza petition when it can resolve the conflict between Article VII, Section 15 and Article
VIII, Section 4(1) through the Tolentino and Soriano petitions?

The answer is fairly simple and can be read between the lines of the above explanation on the relationship between the Court and the JBC. First,
administrative is different from judicial function and providing guidance to the JBC can only be appropriate in the discharge of the Courts administrative
function. Second, the resolution of the Tolentino and Soriano petitions will lead to rulings directly related to the underlying facts of these petitions, without
clear guidelines to the JBC on the proper parameters to observe vis--vis the constitutional dispute along the lines the JBC needs. In fact, concrete guidelines
addressed to the JBC in the resolution of the Tolentino/Soriano petitions may even lead to accusations that the Courts resolution is broader than is required
by the facts of the petitions. The Mendoza petition, because it pertains directly to the performance of the JBCs duty and the Courts supervisory authority,
allows the issuance of precise guidelines that will enable the JBC to fully and seasonably comply with its constitutional mandate.

I hasten to add that the JBCs constitutional task is not as simple as some people think it to be. The process of preparing and submitting a list of nominees is
an arduous and time-consuming task that cannot be done overnight. It is a six-step process lined with standards requiring the JBC to attract the best
available candidates, to examine and investigate them, to exhibit transparency in all its actions while ensuring that these actions conform to constitutional
and statutory standards (such as the election ban on appointments), to submit the required list of nominees on time, and to ensure as well that all these acts
are politically neutral. On the time element, the JBC list for the Supreme Court has to be submitted on or before the vacancy occurs given the 90-day
deadline that the appointing President is given in making the appointment. The list will be submitted, not to the President as an outgoing President, nor to
the election winner as an incoming President, but to the President of the Philippines whoever he or she may be. If the incumbent President does not act on
the JBC list within the time left in her term, the same list shall be available to the new President for him to act upon. In all these, the Supreme Court bears
the burden of overseeing that the JBCs duty is done, unerringly and with utmost dispatch; the Court cannot undertake this supervision in a manner
consistent with the Constitutions expectation from the JBC unless it adopts a pro-active stance within the limits of its supervisory authority.

The Disputed Provisions

The movants present their arguments on the main issue at several levels. Some argue that the disputed constitutional provisions Article VII, Section 15 and
Article VIII, Section 4(1) are clear and speak for themselves on what the Constitution covers in banning appointments during the election period.23 One
even posits that there is no conflict because both provisions can be given effect without one detracting against the full effectiveness of the other,24 although
the effect is to deny the sitting President the option to appoint in favor of a deferment for the incoming Presidents action. Still others, repeating their
original arguments, appeal to the principles of interpretation and latin maxims to prove their point.25

In my discussions in the Separate Opinion, I stated upfront my views on how the disputed provisions interact with each other. Read singly and in isolation,
they appear clear (this reading applies the "plain meaning rule" that Tolentino advocates in his motion for reconsideration, as explained below). Arrayed
side by side with each other and considered in relation with the other provisions of the Constitution, particularly its structure and underlying intents, the
conflict however becomes obvious and unavoidable.

Section 15 on its face disallows any appointment in clear negative terms ("shall not make") without specifying the appointments covered by the
prohibition.26 From this literal and isolated reading springs the argument that no exception is provided (except that found in Section 15 itself) so that even
the Judiciary is covered by the ban on appointments.

On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in the Court shall be filled within 90 days from its
occurrence.27 In the way of Section 15, Section 4(1) is also clear and categorical and provides no exception; the appointment refers solely to the Members of
the Supreme Court and does not mention any period that would interrupt, hold or postpone the 90-day requirement.

From this perspective, the view that no conflict exists cannot be seriously made, unless with the mindset that one provision controls and the other should
yield. Many of the petitions in fact advocate this kind of reading, some of them openly stating that the power of appointment should be reserved for the
incoming President.28 The question, however, is whether from the viewpoint of strict law and devoid of the emotionalism and political partisanship that
permeate the present Philippine political environment this kind of mindset can really be adopted in reading and applying the Constitution.

In my view, this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the provisions of the Constitution cannot be read in isolation
from what the whole contains. To be exact, the Constitution must be read and understood as a whole, reconciling and harmonizing apparently conflicting
provisions so that all of them can be given full force and effect,29 unless the Constitution itself expressly states otherwise.30

Not to be forgotten in reading and understanding the Constitution are the many established underlying constitutional principles that we have to observe and
respect if we are to be true to the Constitution. These principles among them the principles of checks and balances and separation of powers are not
always expressly stated in the Constitution, but no one who believes in and who has studied the Constitution can deny that they are there and deserve utmost
attention, respect, and even priority consideration.

In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of balance among the three great departments of
government the Executive, the Legislative and the Judiciary, with each department undertaking its constitutionally-assigned task as a check against the
exercise of power by the others, while all three departments move forward in working for the progress of the nation. Thus, the Legislature makes the laws
and is supreme in this regard, in the way that the Executive is supreme in enforcing and administering the law, while the Judiciary interprets both the
Constitution and the law. Any provision in each of the Articles on these three departments31 that intrudes into the other must be closely examined if the
provision affects and upsets the desired balance.

Under the division of powers, the President as Chief Executive is given the prerogative of making appointments, subject only to the legal qualification
standards, to the checks provided by the Legislatures Commission on Appointments (when applicable) and by the JBC for appointments in the Judiciary,
and to the Constitutions own limitations. Conflict comes in when the Constitution laid down Article VII, Section 15 limiting the Presidents appointing
power during the election period. This limitation of power would have been all-encompassing and would, thus, have extended to all government positions the
President can fill, had the Constitution not inserted a provision, also on appointments, in the Article on the Judiciary with respect to appointments to the
Supreme Court. This conflict gives rise to the questions: which provision should prevail, or should both be given effect? Or should both provisions yield to a
higher concern the need to maintain the integrity of our elections?

A holistic reading of the Constitution a must in constitutional interpretation dictates as a general rule that the tasks assigned to each department and
their limitations should be given full effect to fulfill the constitutional purposes under the check and balance principle, unless the Constitution itself expressly
indicates its preference for one task, concern or standard over the others,32 or unless this Court, in its role as interpreter of the Constitution, has spoken on
the appropriate interpretation that should be made.33

In considering the interests of the Executive and the Judiciary, a holistic approach starts from the premise that the constitutional scheme is to grant the
President the power of appointment, subject to the limitation provided under Article VII, Section 15. At the same time, the Judiciary is assured, without
qualifications under Article VIII, Section 4(1), of the immediate appointment of Members of the Supreme Court, i.e., within 90 days from the occurrence of
the vacancy. If both provisions would be allowed to take effect, as I believe they should, the limitation on the appointment power of the President under
Article VII, Section 15 should itself be limited by the appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision
applicable to the Judiciary can be given full effect without detriment to the Presidents appointing authority. This harmonization will result in restoring to
the President the full authority to appoint Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15 and Article VIII,
Section 4(1).

Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between the Executive and Judiciary; the President would effectively
be allowed to exercise the Executives traditional presidential power of appointment while respecting the Judiciarys own prerogative. In other words, the
President retains full powers to appoint Members of the Court during the election period, and the Judiciary is assured of a full membership within the time
frame given.

Interestingly, the objection to the full application of Article VIII, Section 4(1) comes, not from the current President, but mainly from petitioners echoing the
present presidential candidates, one of whom shall soon be the incoming President. They do not, of course, cite reasons of power and the loss of the
opportunity to appoint the Chief Justice; many of the petitioners/intervenors oppose the full application of Article VIII, Section 4(1) based on the need to
maintain the integrity of the elections through the avoidance of a "midnight appointment."

This "integrity" reason is a given in a democracy and can hardly be opposed on the theoretical plane, as the integrity of the elections must indeed prevail in
a true democracy. The statement, however, begs a lot of questions, among them the question of whether the appointment of a full Court under the terms of
Article VIII, Section 4(1) will adversely affect or enhance the integrity of the elections.

In my Separate Opinion, I concluded that the appointment of a Member of the Court even during the election period per se implies no adverse effect on the
integrity of the election; a full Court is ideal during this period in light of the Courts unique role during elections. I maintain this view and fully concur in
this regard with the majority.

During the election period, the court is not only the interpreter of the Constitution and the election laws; other than the Commission on Elections and the
lower courts to a limited extent, the Court is likewise the highest impartial recourse available to decisively address any problem or dispute arising from the
election. It is the leader and the highest court in the Judiciary, the only one of the three departments of government directly unaffected by the election. The
Court is likewise the entity entrusted by the Constitution, no less, with the gravest election-related responsibilities. In particular, it is the sole judge of all
contests in the election of the President and the Vice-President, with leadership and participation as well in the election tribunals that directly address Senate
and House of Representatives electoral disputes. With this grant of responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on
election matters. This reposed trust, to my mind, renders academic any question of whether an appointment during the election period will adversely affect
the integrity of the elections it will not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional scheme to foster a free
and orderly election.

In reading the motions for reconsideration against the backdrop of the partisan political noise of the coming elections, one cannot avoid hearing echoes from
some of the arguments that the objection is related, more than anything else, to their lack of trust in an appointment to be made by the incumbent President
who will soon be bowing out of office. They label the incumbent Presidents act as a "midnight appointment" a term that has acquired a pejorative
meaning in contemporary society.

As I intimated in my Separate Opinion, the imputation of distrust can be made against any appointing authority, whether outgoing or incoming. The
incoming President himself will be before this Court if an election contest arises; any President, past or future, would also naturally wish favorable outcomes
in legal problems that the Court would resolve. These possibilities and the potential for continuing influence in the Court, however, cannot be active
considerations in resolving the election ban issue as they are, in their present form and presentation, all speculative. If past record is to be the measure, the
record of past Chief Justices and of this Court speaks for itself with respect to the Justices relationship with, and deferral to, the appointing authority in
their decisions.

What should not be forgotten in examining the records of the Court, from the prism of problems an electoral exercise may bring, is the Courts unique and
proven capacity to intervene and diffuse situations that are potentially explosive for the nation. EDSA II particularly comes to mind in this regard (although
it was an event that was not rooted in election problems) as it is a perfect example of the potential for damage to the nation that the Court can address and
has addressed. When acting in this role, a vacancy in the Court is not only a vote less, but a significant contribution less in the Courts deliberations and
capacity for action, especially if the missing voice is the voice of the Chief Justice.

Be it remembered that if any EDSA-type situation arises in the coming elections, it will be compounded by the lack of leaders because of the lapse of the
Presidents term by June 30, 2010; by a possible failure of succession if for some reason the election of the new leadership becomes problematic; and by the
similar absence of congressional leadership because Congress has not yet convened to organize itself.34 In this scenario, only the Judiciary of the three great
departments of government stands unaffected by the election and should at least therefore be complete to enable it to discharge its constitutional role to its
fullest potential and capacity. To state the obvious, leaving the Judiciary without any permanent leader in this scenario may immeasurably complicate the
problem, as all three departments of government will then be leaderless.

To stress what I mentioned on this point in my Separate Opinion, the absence of a Chief Justice will make a lot of difference in the effectiveness of the Court
as he or she heads the Judiciary, sits as Chair of the JBC and of the Presidential Electoral Tribunal, presides over impeachment proceedings, and provides
the moral suasion and leadership that only the permanent mantle of the Chief Justice can bestow. EDSA II is just one of the many lessons from the past
when the weightiest of issues were tackled and promptly resolved by the Court. Unseen by the general public in all these was the leadership that was there to
ensure that the Court would act as one, in the spirit of harmony and stability although divergent in their individual views, as the Justices individually make
their contributions to the collegial result. To some, this leadership may only be symbolic, as the Court has fully functioned in the past even with an
incomplete membership or under an Acting Chief Justice. But as I said before, an incomplete Court "is not a whole Supreme Court; it will only be a Court
with 14 members who would act and vote on all matters before it." To fully recall what I have said on this matter:

The importance of the presence of one Member of the Court can and should never be underestimated, particularly on issues that may gravely affect the
nation. Many a case has been won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or statute, a tie vote which is possible
in a 14 member court means that the constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR Secretary.

More than the vote, Court deliberation is the core of the decision-making process and one voice is less is not only a vote less but a contributed opinion, an
observation, or a cautionary word less for the Court. One voice can be a big difference if the missing voice is that of the Chief Justice.

Without meaning to demean the capability of an Acting Chief Justice, the ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled.
He is the first among equals a primus inter pares who sets the tone for the Court and the Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he is the personification of the Court and the whole Judiciary. And this is not surprising since,
as Chief Justice, he not only chairs the Court en banc, but chairs as well the Presidential Electoral Tribunal that sits in judgment over election disputes
affecting the President and the Vice-President. Outside of his immediate Court duties, he sits as Chair of the Judicial and Bar Council, the Philippine
Judicial Academy and, by constitutional command, presides over the impeachment of the President. To be sure, the Acting Chief Justice may be the ablest,
but he is not the Chief Justice without the mantle and permanent title of the Office, and even his presence as Acting Chief Justice leaves the Court with one
member less. Sadly, this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary and the Court remains headless. 35

Given these views, I see no point in re-discussing the finer points of technical interpretation and their supporting latin maxims that I have addressed in my
Separate Opinion and now feel need no further elaboration; maxims can be found to serve a pleaders every need and in any case are the last interpretative
tools in constitutional interpretation. Nor do I see any point in discussing arguments based on the intent of the framers of the Constitution now cited by the
parties in the contexts that would serve their own ends. As may be evident in these discussions, other than the texts of the disputed provisions, I prefer to
examine their purposes and the consequences of their application, understood within the context of democratic values. Past precedents are equally
invaluable for the lead, order, and stability they contribute, but only if they are in point, certain, and still alive to current realities, while the history of
provisions, including the intents behind them, are primarily important to ascertain the purposes the provisions serve.

From these perspectives and without denigrating the framers historical contributions, I say that it is the Constitution that now primarily speaks to us in this
case and what we hear are its direct words, not merely the recorded isolated debates reflecting the personal intents of the constitutional commissioners as
cited by the parties to fit their respective theories. The voice speaking the words of the Constitution is our best guide, as these words will unalterably be there
for us to read in the context of their purposes and the nations needs and circumstances. This Concurring and Dissenting Opinion hears and listens to that
voice.

The Valenzuela Decision

The ponencias ruling reversing Valenzuela, in my view, is out of place in the present case, since at issue here is the appointment of the Chief Justice during
the period of the election ban, not the appointment of lower court judges that Valenzuela resolved. To be perfectly clear, the conflict in the constitutional
provisions is not confined to Article VII, Section 15 and Article VIII, Section 4(1) with respect to the appointment of Members of the Supreme Court; even
before the Valenzuela ruling, the conflict already existed between Article VII, Section 15 and Article VIII, Section 9 the provision on the appointment of
the justices and judges of courts lower than the Supreme Court. After this Courts ruling in Valenzuela, no amount of hairsplitting can result in the
conclusion that Article VII, Section 15 applied the election ban over the whole Judiciary, including the Supreme Court, as the facts and the fallo of
Valenzuela plainly spoke of the objectionable appointment of two Regional Trial Court judges. To reiterate, Valenzuela only resolved the conflict between
Article VII, Section 15 and appointments to the Judiciary under Article VIII, Section 9.

If Valenzuela did prominently figure at all in the present case, the prominence can be attributed to the petitioners mistaken reading that this case is
primary authority for the dictum that Article VII, Section 15 completely bans all appointments to the Judiciary, including appointments to the Supreme
Court, during the election period up to the end of the incumbent Presidents term.

In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence, cannot be cited for its primary precedential value. This legal situation still
holds true as Valenzuela was not doctrinally reversed as its proposed reversal was supported only by five (5) out of the 12 participating Members of the
Court. In other words, this ruling on how Article VII, Section 15 is to be interpreted in relation with Article VIII, Section 9, should continue to stand unless
otherwise expressly reversed by this Court.

But separately from the mistaken use of an obiter ruling as primary authority, I believe that I should sound the alarm bell about the Valenzuela ruling in
light of a recent vacancy in the position of Presiding Justice of the Sandiganbayan resulting from Presiding Justice Norberto Geraldezs death soon after we
issued the decision in the present case. Reversing the Valenzuela ruling now, in the absence of a properly filed case addressing an appointment at this time to
the Sandiganbayan or to any other vacancy in the lower courts, will be an irregular ruling of the first magnitude by this Court, as it will effectively be a
shortcut that lifts the election ban on appointments to the lower courts without the benefit of a case whose facts and arguments would directly confront the
continued validity of the Valenzuela ruling. This is especially so after we have placed the Court on notice that a reversal of Valenzuela is uncalled for because
its ruling is not the litigated issue in this case.

In any case, let me repeat what I stressed in my Separate Opinion about Valenzuela which rests on the reasoning that the evils Section 15 seeks to remedy
vote buying, midnight appointments and partisan reasons to influence the elections exist, thus justifying an election appointment ban. In particular, the
"midnight appointment" justification, while fully applicable to the more numerous vacancies at the lower echelons of the Judiciary (with an alleged current
lower court vacancy level of 537 or a 24.5% vacancy rate), should not apply to the Supreme Court which has only a total of 15 positions that are not even
vacated at the same time. The most number of vacancies for any one year occurred only last year (2009) when seven (7) positions were vacated by
retirement, but this vacancy rate is not expected to be replicated at any time within the next decade. Thus "midnight appointments" to the extent that they
were understood in Aytona36 will not occur in the vacancies of this Court as nominations to its vacancies are all processed through the JBC under the
publics close scrutiny. As already discussed above, the institutional integrity of the Court is hardly an issue. If at all, only objections personal to the
individual Members of the Court or against the individual applicants can be made, but these are matters addressed in the first place by the JBC before
nominees are submitted. There, too, are specific reasons, likewise discussed above, explaining why the election ban should not apply to the Supreme Court.
These exempting reasons, of course, have yet to be shown to apply to the lower courts. Thus, on the whole, the reasons justifying the election ban in
Valenzuela still obtain in so far as the lower courts are concerned, and have yet to be proven otherwise in a properly filed case. Until then, Valenzuela, except
to the extent that it mentioned Section 4(1), should remain an authoritative ruling of this Court.

CONCLUSION

In light of these considerations, a writ of prohibition cannot issue to prevent the JBC from performing its principal function, under the Constitution, of
recommending nominees for the position of Chief Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for reconsideration.

The other motions for reconsideration in so far as they challenge the conclusion that the President can appoint the Chief Justice even during the election
period are likewise denied with finality for lack of merit, but are granted in so far as they support the continued validity of the ruling of this Court in In Re:
Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.

My opinion on the Mendoza petition stands.

ARTURO D. BRION

Associate Justice


G.R. No. 112497 August 4, 1994

HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE, petitioner,

vs.

MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND
THE CITY OF MANILA, respondents.

The City Legal Officer for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).

J oseph Lopez for Sangguniang Panglunsod of Manila.

L.A. Maglaya for Petron Corporation.



CRUZ, J .:

The principal issue in this case is the constitutionality of Section 187 of the Local Government Code reading as follows:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. The procedure for approval of local tax
ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose
prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised
on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and
payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer, declared Ordinance No. 7794, otherwise known as the
Manila Revenue Code, null and void for non-compliance with the prescribed procedure in the enactment of tax ordinances and for containing certain
provisions contrary to law and public policy. 1

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the Secretary's resolution and sustained the ordinance,
holding inter alia that the procedural requirements had been observed. More importantly, it declared Section 187 of the Local Government Code as
unconstitutional because of its vesture in the Secretary of Justice of the power of control over local governments in violati on of the policy of local autonomy
mandated in the Constitution and of the specific provision therein conferring on the President of the Philippines only the power of supervision over local
governments. 2

The present petition would have us reverse that decision. The Secretary argues that the annulled Section 187 is constitutional and that the procedural
requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed.

Parenthetically, this petition was originally dismissed by the Court for non-compliance with Circular 1-88, the Solicitor General having failed to submit a
certified true copy of the challenged decision. 3 However, on motion for reconsideration with the required certified true copy of the decision attached, the
petition was reinstated in view of the importance of the issues raised therein.

We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding laws by the criterion of their conformity to the fundamental law. Specifically, BP
129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation, 4even as the
accused in a criminal action has the right to question in his defense the constitutionality of a law he is charged with violating and of the proceedings taken
against him, particularly as they contravene the Bill of Rights. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate
jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. As the questioned act is usually the handiwork of the
legislative or the executive departments, or both, it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment of this
Court in the consideration of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the
majority of those who participated in its discussion. 5

It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declari ng a law unconstitutional, on
the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the
fundamental law before it was finally approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing
that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in
the discharge of the duty it cannot escape, that the challenged act must be struck down.

In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code unconstitutional insofar as it empowered the Secretary
of Justice to review tax ordinances and, inferentially, to annul them. He cited the familiar distinction between control and supervision, the first being "the
power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for the latter," while the second is "the power of a superior officer to see to it that lower officers perform their functions in accordance with law." 6
His conclusion was that the challenged section gave to the Secretary the power of control and not of supervision only as vested by the Constitution in the
President of the Philippines. This was, in his view, a violation not only of Article X, specifically Section 4 thereof, 7 and of Section 5 on the taxing powers of
local governments, 8 and the policy of local autonomy in general.

We do not share that view. The lower court was rather hasty in invalidating the provision.

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or
both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of
the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of
what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it
was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their
functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government
under the Local Government Code. As we see it, that was an act not of control but of mere supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the
rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he
may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for the doing of the act. He has no
judgment on this matter except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely this, and no more nor less
than this, and so performed an act not of control but of mere supervision.

The case of Taule v. Santos 9 cited in the decision has no application here because the jurisdiction claimed by the Secretary of Local Governments over
election contests in the Katipunan ng Mga Barangay was held to belong to the Commission on Elections by constitutional provision. The conflict was over
jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its Section 2 as follows:

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any ordinance within one hundred and twenty days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or confiscatory, or when it is contrary to declared national
economy policy, and when the said Secretary exercises this authority the effectivity of such ordinance shall be suspended, either in part or as a whole, for a
period of thirty days within which period the local legislative body may either modify the tax ordinance to meet the objections thereto, or file an appeal with
a court of competent jurisdiction; otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as revoked. Thereafter,
the local legislative body may not reimpose the same tax or fee until such time as the grounds for the suspension thereof shall have ceased to exist.

That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive,
oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not
the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never
questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain
the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has
no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra
vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdomor reasonableness, of
the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter.

In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the proposed Manila Revenue Code that were sent to
interested parties as required by Art. 276(b) of the Implementing Rules of the Local Government Code nor were copies of the proposed ordinance published
in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No minutes were submitted to show that the obligatory public
hearings had been held. Neither were copies of the measure as approved posted in prominent places in the city in accordance with Sec. 511(a) of the Local
Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or Tagalog and disseminated among the people for their information
and guidance, conformably to Sec. 59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that
the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and
present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for the elevation to it of the said exhibits. We have
carefully examined every one of these exhibits and agree with the trial court that the procedural requirements have indeed been observed. Notices of the
public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3.
Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the
approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1,
Q-2, and Q-3.

The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three
successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated
and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and
not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not been raised in issue in the present petition.

WHEREFORE, the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court insofar as it declared Section 187 of the
Local Government Code unconstitutional but AFFIRMING its finding that the procedural requirements in the enactment of the Manila Revenue Code have
been observed. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J ., Feliciano, Padilla, Bidin, Regalado, Davide, J r., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, J J ., concur.


G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J .:
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 claims she is the President. The
warring personalities are important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were
to serve a six-year term commencing on June 30, 1998.
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 expos 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 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 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 investigation.
2

The House of Representatives did no less. The House Committee on Public Order and Security, then
headed by Representative Roilo Golez, decided to investigate the expos of 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 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 of the Philippines joined the cry for the resignation of
the petitioner.
4
Four days later, or on October 17, former President Corazon C. Aquino also demanded
that the petitioner take the "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 Department
of Social Welfare and Services
6
and later asked for petitioner's resignation.
7
However, petitioner
strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip.
8
On November 2, Secretary Mar Roxas II
also resigned from the Department of Trade 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 Masang Pilipino.
10

The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker
Villar transmitted the Articles of Impeachment
11
signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political convulsions in both houses
of Congress. Senator Drilon was 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 Taada, 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 11-10
17
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.
19
Senator 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.
26
There 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 Malacaang'' 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 Malacaang 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 Malacaang 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, 2001.1wphi1.nt
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 Malacaang, 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.
37
The 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.
43
Senators 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 Panganiban
52
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
Whether or not the cases
At bar involve a political question
Private respondents
54
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 14
th
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 whichfull 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 to settle actual controversies involving rights which are legally demandable and enforceable but also
to determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of government.
59
Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.
60
With 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 cases
62
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 Constitution
63
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.
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
TheMalolos 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 1973
68
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."
70
In 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 8
75
of Article VII, and the allocation of governmental powers under section 11
76
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 14
th
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 Malacaang 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 expos 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.
x x x
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
Malacaang.
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 Malacaang 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
Malacaang. 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. 176
97
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. 178
98
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. 82
100
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. 83
101
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 (13
th
) 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 Taada 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; andsecond, 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 Bermudez
111
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. Sandiganbayan
112
and related cases
113
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. Jones
117
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
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.
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 installed the jury system whose members are overly protected from
publicity lest they 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.'
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.
130
and
its companion cases, viz:
"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
1. 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.
2. 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.
3. 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.1wphi1.nt
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."
135
To 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 14
th
President of the Republic are DISMISSED.
SO ORDERED.

G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.
JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J .:
The constitutionality of Sec. 13, par. (d), of R.A. 7227,
1
otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and
other operational expenses attached to the office . . . ."
2
Paragraph (d) reads
(d) Chairman administrator The President shall appoint a professional manager as administrator
of the Subic Authority with a compensation to be determined by the Board subject to the approval of the
Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief
executive officer of the Subic Authority: Provided, however, That for the first year of its operations from
the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers
and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines,
maintain that theproviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following
constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states
that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public
officer or position during his tenure,"
3
because the City Mayor of Olongapo City is an elective official
and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . 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",
4
since it was
Congress through the questioned proviso and not the President who appointed the Mayor to the subject
posts;
5
and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special election, (1)
any head, official or appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates and fills any new position, except upon
prior authority of the Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election. As an
exception to the foregoing provisions, a new employee may be appointed in case of urgent need:Provided,
however, That notice of the appointment shall be given to the Commission within three days from the
date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to
any government official or employee, including those in government-owned or controlled corporations . .
. .
for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992
Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided,
however,That for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates
the constitutional proscription against appointment or designation of elective officials to other
government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
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.
The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery
of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815,
6
". . . . should be allowed to attend to his duties and
responsibilities without the distraction of other governmental duties 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 . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where
a local elective official will work for his appointment in an executive position in government, and thus
neglect his constituents . . . ."
7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs
no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the
higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective
official to another post if so allowed by law or by the primary functions of his office.
8
But, the contention
is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of
R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs
of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and planning agency;
9
the Vice-President,
who may be appointed Member of the Cabinet;
10
and, a member of Congress who may be designated ex
officio member of the Judicial and Bar Council.
11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when
drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in
their deliberation, thus
MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the
prohibition is more strict with respect to elective officials, because in the case of appointive officials,
there may be a law that will allow them to hold other positions.
MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will
be certain situations where the law should allow them to hold some other positions.
12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot
be extended to elective officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City,
hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary,
13
where we stated
that the prohibition against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec.
13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the
primary functions of the officials concerned, who are to perform them in an ex officio capacity as
provided by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not contemplate making the subject
SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without
need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the
SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the
legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been used.
14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec.
7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved
by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par.,
had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene
Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then
that should foreclose the issue. It is a legislative choice."
15
The Senator took a view that the constitutional
proscription against appointment of elective officials may have been sidestepped if Congress attached the
SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post.
Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts
to be appointive, thus nibbling in the bud the argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be
applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present
case. In the same vein, the argument that if no elective official may be appointed or designated to another
post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation
16
would be
useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any
case, the Vice-President for example, an elective official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized
by law.
Petitioners also assail the legislative encroachment on the appointing authority of the President. Section
13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief
Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust,"
17
or "[t]he selection or designation of a
person, by the person or persons having authority therefor, to fill an office or public function and
discharge the duties of the same.
18
In his treatise,Philippine Political
Law,
19
Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office." Considering
that appointment calls for a selection, the appointing power necessarily exercises a discretion. According
to Woodbury, J.,
20
"the choice of a person to fill an office constitutes the essence of his appointment,"
21

and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving
the exercise of discretion."
22
In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court
23

we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he
may exercise freely according to his judgment, deciding for himself who is best qualified among those
who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at
the same time limit the choice of the President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even
on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can only be met by one individual, such
enactment effectively eliminates the discretion of the appointing power to choose and constitutes an
irregular restriction on the power of appointment.
24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for
the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can
qualify for the posts in question, the President is precluded from exercising his discretion to choose whom
to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all
and goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the officer during the first year
of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative
act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive position.
MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the
service, but if he is prohibited from being appointed within the term for which he was elected, we may be
depriving the government of the needed expertise of an individual.
25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to
another public office.
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor
remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official
is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of
his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of
the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other
office or employment in the Government . . . during his term without forfeiting his seat . . . ." The
difference between the two provisions is significant in the sense that incumbent national legislators lose
their elective posts only after they have been appointed to another government office, while other
incumbent elective officials must first resign their posts before they can be appointed, thus running the
risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is
expresslyprovided by law that a person holding one office shall be ineligible to another. Such a provision
is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel.
Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to
render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65
NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)."
26
"Where the constitution, or statutes declare that persons holding one office shall be ineligible for
election or appointment to another office, either generally or of a certain kind, the prohibition has been
held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the
second is void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)."
27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a
de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy
and justice, will hold valid so far as they involve the interest of the public and third persons, where the
duties of the office were exercised . . . . under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being
unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs.
Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)."
28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may be
retained by him.
The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto
need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in
the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated
. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this
Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity,
industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome
and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear. It
says: "No elective official shall be appointed or designated to another position in any capacity."
29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a
rock in the ocean amidst the raging of the waves."
30
One of the characteristics of the Constitution is
permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs
but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change."
31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That
for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall
be appointed as the chairman and chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City,
respondent Richard J. Gordon, is INVALID, hence NULL and VOID.
However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such
Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by
him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and
Quiason, JJ., concur.
Padilla, J., is on leave.

G.R. No. L-27811 November 17, 1967
LACSON-MAGALLANES CO., INC., plaintiff-appellant,
vs.
JOSE PAO, HON. JUAN PAJO, in his capacity as Executive Secretary, and HON. JUAN DE G.
RODRIGUEZ, in his capacity as Secretary of Agriculture and Natural Resources, defendants-
appellees.
Leopoldo M. Abellera for plaintiff-appellant.
Victorio Advincula for defendant Jose Pao.
Office of the Solicitor General for defendant Secretary of Agriculture and Natural Resources and
Executive Secretary.
SANCHEZ, J .:
The question May the Executive Secretary, acting by authority of the President, reverse a decision of
the Director of Lands that had been affirmed by the Executive Secretary of Agriculture and Natural
Resources yielded an affirmative answer from the lower court.
1

Hence, this appeal certified to this Court by the Court of Appeals upon the provisions of Sections 17 and
31 of the Judiciary Act of 1948, as amended.
The undisputed controlling facts are:
In 1932, Jose Magallanes was a permittee and actual occupant of a 1,103-hectare pasture land situated in
Tamlangon, Municipality of Bansalan, Province of Davao.
On January 9, 1953, Magallanes ceded his rights and interests to a portion (392,7569 hectares) of the
above public land to plaintiff.
On April 13, 1954, the portion Magallanes ceded to plaintiff was officially released from the forest zone
as pasture land and declared agricultural land.
On January 26, 1955, Jose Pao and nineteen other claimants
2
applied for the purchase of ninety hectares
of the released area.
On March 29, 1955, plaintiff corporation in turn filed its own sales application covering the entire
released area. This was protested by Jose Pao and his nineteen companions upon the averment that they
are actual occupants of the part thereof covered by their own sales application.
The Director of Lands, following an investigation of the conflict, rendered a decision on July 31, 1956
giving due course to the application of plaintiff corporation, and dismissing the claim of Jose Pao and
his companions. A move to reconsider failed.
On July 5, 1957, the Secretary of Agriculture and Natural Resources on appeal by Jose Pao for
himself and his companions held that the appeal was without merit and dismissed the same.
The case was elevated to the President of the Philippines.
On June 25, 1958, Executive Secretary Juan Pajo, "[b]y authority of the President" decided the
controversy, modified the decision of the Director of Lands as affirmed by the Secretary of Agriculture
and Natural Resources, and (1) declared that "it would be for the public interest that appellants, who are
mostly landless farmers who depend on the land for their existence, be allocated that portion on which
they have made improvements;" and (2) directed that the controverted land (northern portion of Block I,
LC Map 1749, Project No. 27, of Bansalan, Davao, with Latian River as the dividing line) "should be
subdivided into lots of convenient sizes and allocated to actual occupants, without prejudice to the
corporation's right to reimbursement for the cost of surveying this portion." It may be well to state, at this
point, that the decision just mentioned, signed by the Executive Secretary, was planted upon the facts as
found in said decision.
Plaintiff corporation took the foregoing decision to the Court of First Instance praying that judgment be
rendered declaring: (1) that the decision of the Secretary of Agriculture and Natural Resources has full
force and effect; and (2) that the decision of the Executive Secretary is contrary to law and of no legal
force and effect.
And now subject of this appeal is the judgment of the court a quo dismissing plaintiff's case.
1. Plaintiff's mainstay is Section 4 of Commonwealth Act 141. The precept there is that decisions of
the Director of Lands "as to questions of facts shall be conclusive when approved" by the Secretary of
Agriculture and Natural Resources. Plaintiff's trenchment claim is that this statute is controlling not only
upon courts but also upon the President.
Plaintiff's position is incorrect. The President's duty to execute the law is of constitutional origin.
3
So, too,
is his control of all executive departments.
4
Thus it is, that department heads are men of his confidence.
His is the power to appoint them; his, too, is the privilege to dismiss them at pleasure. Naturally, he
controls and directs their acts. Implicit then is his authority to go over, confirm, modify or reverse the
action taken by his department secretaries. In this context, it may not be said that the President cannot rule
on the correctness of a decision of a department secretary.
Particularly in reference to the decisions of the Director of Lands, as affirmed by the Secretary of
Agriculture and Natural Resources, the standard practice is to allow appeals from such decisions to the
Office of the President.
5
This Court has recognized this practice in several cases. In one, the decision of
the Lands Director as approved by the Secretary was considered superseded by that of the President's
appeal.
6
In other cases, failure to pursue or resort to this last remedy of appeal was considered a fatal
defect, warranting dismissal of the case, for non-exhaustion of all administrative remedies.
7

Parenthetically, it may be stated that the right to appeal to the President reposes upon the President's
power of control over the executive departments.
8
And control simply means "the power of an officer 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 for that of the latter."
9

This unquestionably negates the assertion that the President cannot undo an act of his department
secretary.
2. Plaintiff next submits that the decision of the Executive Secretary herein is an undue delegation
of power. The Constitution, petitioner asserts, does not contain any provision whereby the presidential
power of control may be delegated to the Executive Secretary. It is argued that it is the constitutional duty
of the President to act personally upon the matter.
It is correct to say that constitutional powers there are which the President must exercise in person.
10
Not
as correct, however, is it so say that the Chief Executive may not delegate to his Executive Secretary acts
which the Constitution does not command that he perform in person.
11
Reason is not wanting for this
view. The President is not expected to perform in person all the multifarious executive and administrative
functions. The Office of the Executive Secretary is an auxiliary unit which assists the President. The rule
which has thus gained recognition is that "under our constitutional setup the Executive Secretary who acts
for and in behalf and by authority of the President has an undisputed jurisdiction to affirm, modify, or
even reverse any order" that the Secretary of Agriculture and Natural Resources, including the Director of
Lands, may issue.
12

3. But plaintiff underscores the fact that the Executive Secretary is equal in rank to the other
department heads, no higher than anyone of them. From this, plaintiff carves the argument that one
department head, on the pretext that he is an alter ego of the President, cannot intrude into the zone of
action allocated to another department secretary. This argument betrays lack of appreciation of the fact
that where, as in this case, the Executive Secretary acts "[b]y authority of the President," his decision is
that of the President's. Such decision is to be given full faith and credit by our courts. The assumed
authority of the Executive Secretary is to be accepted. For, only the President may rightfully say that the
Executive Secretary is not authorized to do so. Therefore, unless the action taken is "disapproved or
reprobated by the Chief Executive,"
13
that remains the act of the Chief Executive, and cannot be
successfully assailed.
14
No such disapproval or reprobation is even intimated in the record of this case.
For the reasons given, the judgment under review is hereby affirmed. Costs against plaintiff. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro and Angeles, JJ.,
concur.

Separate Opinions
FERNANDO, J ., concurring:
The learned opinion of Justice Sanchez possesses merit and inspires assent. A further observation may not
be amiss concerning that portion thereof which speaks of "the standard practice" allowing appeals from
[decisions of Secretary of Natural Resources affirming the action taken by the Director of Lands] to the
Office of the President. That for me is more than a "standard practice." It is sound law. The constitutional
grant to the President of the power of control over all executive departments, bureaus and offices yields
that implication.
1

If this were all, there would be no need for an additional expression of my views. I feel constrained to do
so however in order to emphasize that the opinion of the Court appears to me to reflect with greater
fidelity the constitutional intent as embodied in the above provision vesting the power of control in the
Presidency.
The question asked in the opening paragraph of the opinion "May the Executive Secretary, acting by
authority of the President, reverse a decision of the Director of Lands that had been affirmed by the
Secretary of Agriculture and Natural Resources [?]" merits but one answer. It must be in the
unqualified affirmative. So the Court holds. That is as it should be. Any other view would be highly
unorthodox.
Nonetheless, the thought seems to lurk in the opinion of a respectable number of members of the bar that
a provision as that found in the Public Land Act to the effect that decisions of Director of Lands on
questions of facts shall be conclusive when approved by the Secretary of Agriculture and Natural
Resources
2
constitute a limitation of such power of control. This view might have gained plausibility in
the light of Ang-Angco vs. Castillo,
3
where the procedure set forth in the Civil Service Act in 1959 was
held binding in so far as the President is concerned in the case of disciplinary action taken against non-
presidential appointees.
The argument that what the then Executive Secretary acting for the President did was justified by the
constitutional grant of control elicited no favorable response. The Court apparently was not receptive to a
more expansive view of such executive prerogative. This is not to say that what was there decided was
entirely lacking in justification. It is merely to suggest that it may contain implications not in conformity
with the broad grant of authority constitutionally conferred on the President.
It is well-worth emphasizing that the President unlike any other official in the Executive Department is
vested with both "constitutional and legal authority"
4
as Justice Laurel noted. Care is to be taken then lest
by a too narrow interpretation what could reasonably be included in such competence recognized by the
Constitution be unduly restricted. If my reading of the opinion of Justice Sanchez is correct, then there is
a more hospitable scope accorded such power of control. For me this is more in keeping with the
fundamental law. Moreover there would be a greater awareness on the part of all of the broad range of
authority the President possesses by virtue of such a provision.
Reference to the words of Justice Laurel, who was himself one of the leading framers of the Constitution
and thereafter, as a member of this Court, one of its most authoritative expounders in the leading case of
Villena vs. Secretary of Interior,
5
is not inappropriate. Their reverberating clang, to paraphrase Justice
Cardozo, should drown all weaker sounds. Thus: "After serious reflection, we have decided to sustain the
contention of the government in this case on the broad proposition, albeit not suggested, that under the
presidential type of government which we have adopted and considering the departmental organization
established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, 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. (Runkle
vs. United States [1887], 122 U.S., 543; 30 Law. ed., 1167; 7 Sup. St. Rep. 1141; see also U.S. vs.
Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U.S. [1890], 137 U.S. 202; 34 Law. ed., 691; 11
Sup. Ct. Rep. 80; Wolsey vs. Chapman [1880], 101 U.S. 775; 25 Law. ed. 915; Wilcox vs. Jackson
[1836], 13 Pet. 498; 10 Law. ed. 264.)"
The opinion of Justice Laurel continues: "Fear is expressed by more than one member of this court that
the acceptance of the principle of qualified political agency in this and similar cases would result in the
assumption of responsibility by the President of the Philippines for acts of any member of his cabinet,
however illegal, irregular or improper may be these acts. The implications, it is said, are serious. Fear,
however, is no valid argument against the system once adopted, established and operated. Familiarity
with the essential background of the type of govenment established under our Constitution, in the light of
certain well-known principles and practices that go with the system, should offer the necessary
explanation. 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, begin 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' (7 Writings, Ford ed., 498), and, in the
language of Attorney-General Cushing, (7 Op., Attorney-General, 453), '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' (Myers vs. United States, 47 Sup. Ct. Rep. 21 at 30; 272 U.S. 52 at 133; 71 Law. ed.,
160). 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. It is therefore logical that he, the
President, should be answerable for the acts of administration of the entire Executive Department before
his own conscience no less than before that undefined power of public opinion which, in the language of
Daniel Webster, is the last repository of popular government. These are the necessary corollaries of the
American presidential type of government, and if there is any defect, it is attributable to the system itself.
We cannot modify the system unless we modify the Constitution, and we cannot modify the Constitution
by any subtle process of judicial interpretation or construction."
Concepcion, C.J. and Castro, J., concur.

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 YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
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.
R E S O L U T I O N

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:
1. to bar former President Marcos and his family from returning to the Philippines is to deny 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...
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:
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 thespecific 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."

Separate Opinions

CRUZ, J ., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has
been met with only passing interest if not outright indifference from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip
the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that
feeble threat has died with him. As the government stresses, he has been reduced to a non-person (which
makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or
that or whatever except by his fanatical followers. It is only a dead body waiting to be interred in this
country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let
us be done with it forever.
PARAS, J ., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say
that a dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised
Penal Code prohibits the commission of libel against a deceased individual. And even if we were to
assume the non- existence anymore of his human rights what about the human rights of his widow and the
other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military
destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains
to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse
the request can mean a hardening of resistance against the well-intentioned aim of the administration.
Upon the other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way
for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote
"the quality of mercy is not strained." Surely, compassion is the better part of government. Remove
mercy, and you remove the best reason against civil strife, which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J ., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had
been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first
cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to
return to, die and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be
buried in this country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes
the right to return to, die and be buried in this country? The answer should be in the negative if the
Constitution is to still prevail; the answer should be in the negative if we are to avoid the completely
indefensible act of denying a Filipino the last right to blend his mortal remains with a few square feet of
earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any Filipino,
except Mr. Marcos, because he was a dictator and he plundered the country. This is the most irrelevant
argument that can be raised at this time. For, our democracy is built on the fundamental assumption (so
we believe) that the Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to
national security and public safety. What threat? As pointed out in my dissenting opinion, the second
cogent and decisive proposition in this case is that respondents have not presented any "hard evidence"
(factual bases) or convincing proof of such threat. "All we have are general conclusions of national
security and public safety' in avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm the validity of such dissenting
statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation
cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into
mother earth, where there are no protests, "demos", or even dissents, where the rule that reigns, in the
language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without merit.
As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived of his right
to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests and even violencethat their
Idol has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino to be buried in his
country, is part of a continuing right that starts from birth and ends only on the day he is finally laid to
rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned and
greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to ignite
an already divided nation, Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and deference to the dead. What
predictably follows will be a continuing strife, among our people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the
Philippine government may impose in the interest of peace and order.
SARMIENTO, J ., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can
not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights
of the ex-President's bereaved to bury his remains in his homeland, and for them to return from exile. As I
had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication,
the President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the
resolution of the majority. I have found none. I am not agreed, that:
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, 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 powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the general grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific
powers of the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says
that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law
intended a presidential imprimatur, it would have said so. It would have also completed the symmetry:
judicial, congressional, and executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially so,
because the President is the caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That "[t]he 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" (Res., 3) is the realm of conjecture, speculation, and
imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over
and over that Marcos followers are not capable of successful destabilization effort. And only this morning
(October 27, 1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the Government's capability to
quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the
point. I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in
his homeland. As for the former, let them get their just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J ., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has
been met with only passing interest if not outright indifference from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip
the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that
feeble threat has died with him. As the government stresses, he has been reduced to a non-person (which
makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or
that or whatever except by his fanatical followers. It is only a dead body waiting to be interred in this
country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let
us be done with it forever.
PARAS, J ., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say
that a dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised
Penal Code prohibits the commission of libel against a deceased individual. And even if we were to
assume the non- existence anymore of his human rights what about the human rights of his widow and the
other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military
destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains
to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse
the request can mean a hardening of resistance against the well-intentioned aim of the administration.
Upon the other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way
for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote
"the quality of mercy is not strained." Surely, compassion is the better part of government. Remove
mercy, and you remove the best reason against civil strife, which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as one great man has put it, the question will no longer be
what is right, but what is left.
PADILLA, J ., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had
been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first
cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to
return to, die and be buried in this country." I have only to add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be
buried in this country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion, includes
the right to return to, die and be buried in this country? The answer should be in the negative if the
Constitution is to still prevail; the answer should be in the negative if we are to avoid the completely
indefensible act of denying a Filipino the last right to blend his mortal remains with a few square feet of
earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any Filipino,
except Mr. Marcos, because he was a dictator and he plundered the country. This is the most irrelevant
argument that can be raised at this time. For, our democracy is built on the fundamental assumption (so
we believe) that the Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to
national security and public safety. What threat? As pointed out in my dissenting opinion, the second
cogent and decisive proposition in this case is that respondents have not presented any "hard evidence"
(factual bases) or convincing proof of such threat. "All we have are general conclusions of national
security and public safety' in avoidance of a specific, demandable and enforceable constitutional and basic
human right to return." Recent events have, to my mind, served to confirm the validity of such dissenting
statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation
cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into
mother earth, where there are no protests, "demos", or even dissents, where the rule that reigns, in the
language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without merit.
As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived of his right
to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the country and
allowed the burial to which he is constitutionally and humanly entitled, Marcos' supporters would be
deprived of an otherwise potent argumentso conducive to mass protests and even violencethat their
Idol has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino to be buried in his
country, is part of a continuing right that starts from birth and ends only on the day he is finally laid to
rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned and
greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to ignite
an already divided nation, Regrettably, they have ignored the constitutional dimension of the problem
rooted in the ageless and finest tradition of our people for respect and deference to the dead. What
predictably follows will be a continuing strife, among our people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the
Philippine government may impose in the interest of peace and order.
SARMIENTO, J ., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can
not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights
of the ex-President's bereaved to bury his remains in his homeland, and for them to return from exile. As I
had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication,
the President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the
resolution of the majority. I have found none. I am not agreed, that:
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, 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 powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution of the general grant of executive
power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific
powers of the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says
that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law
intended a presidential imprimatur, it would have said so. It would have also completed the symmetry:
judicial, congressional, and executive restraints on the right. No amount of presumed residual executive
power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially so,
because the President is the caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That "[t]he 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" (Res., 3) is the realm of conjecture, speculation, and
imagination. The military has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over
and over that Marcos followers are not capable of successful destabilization effort. And only this morning
(October 27, 1989), media reported the assurances given to foreign investors by no less than the
President, of the political and economic stability of the nation, as well as the Government's capability to
quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the
point. I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in
his homeland. As for the former, let them get their just deserts here too. And let the matter rest.

G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ,
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.

CORTES, J .:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are
involved, the Court's decision in this case would undeniably have a profound effect on the political,
economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-
violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of power
have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos,
the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii
with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30,
1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs.
Aquino's presidency. This did not, however, stop bloody challenges to the government. On August 28,
1987, Col. Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that
left scores of people, both combatants and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have set
up a parallel government of their own on the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the
nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into
exile after causing twenty years of political, economic and social havoc in the country and who within the
short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following
issues:
1. Does the President have the power to bar the return of former President Marcos and family to the
Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his family from
returning to the Philippines, in the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the President's decision, including
the grounds upon which it was based, been made known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety, or public health a political
question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos and his
family is a clear and present danger to national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return of
former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the
return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-
7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
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.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits prescribed by law." Nor may the President impair their
right to travel because no law has authorized her to do so. They advance the view that before the right to
travel may be impaired by any authority or agency of the government, there must be legislation to that
effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return
to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each
state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public health or
morals or the rights and freedoms of others, and are consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political
question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos
and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights
in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will endanger national security and public
safety.
It may be conceded that as formulated by petitioners, the question is not a political question as it involves
merely a determination of what the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right
of the State to security and safety of its nationals, the question becomes political and this Honorable Court
can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish
their residence here even if their return and residence here will endanger national security and public
safety? this is still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority and competence of the President
of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In
support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The Government
may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo
of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio
batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos
Perez Jimenez of Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted
in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its
limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel
and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S.
116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640)
which affirmed the right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to
other countries or within the Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom
of movement and abode within the territory of a state, the right to leave a country, and the right to enter
one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement
and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country,
including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees
the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be
free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as
"are necessary to protect national security, public order, public health or morals or enter qqqs own
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to
construe the limitations to the right to return to one's country in the same context as those pertaining to the
liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the
right to return may be considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected right.
The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations
on the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate
case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether
or not the President has the power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the Court under the Constitution
in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the
Philippines poses a serious threat to national interest and welfare and decided to bar their return.
Executive Power
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 [63 Phil. 139
(1936)], "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." [At 157.1 Thus, the 1987
Constitution explicitly provides that "[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te 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 [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme
Court inOcampo v. Cabangis [15 Phil. 626 (1910)] 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." [At 631-632.1 If this can be said of the legislative power
which is exercised by two chambers with a combined membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the executive
power which is vested in one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of
the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power"
although in the same article it touches on the exercise of certain powers by the President, i.e., the power
of control over all executive departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power
to submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her.
Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem.
He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that
constitution makers ought to leave considerable leeway for the future play of political forces, it should be
a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested
in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-
4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the
office from Washington to the early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends in
important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according to the man in charge. Each
President's distinctive temperament and character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the constitutional order, therefore
altered from President to President. Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to the President's powers under the
1987 Constitution. The 1935 Constitution created a strong President with explicitly broader powers than
the U.S. President. The 1973 Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through numerous amendments, the
President became even more powerful, to the point that he was also the de facto Legislature. 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 ofspecific 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. Thus, in the landmark decision of Springer v. Government of the Philippine
Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the Government to elect directors in the National
Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are vested by the Organic Act in
the Governor-General, it is clear that they are not legislative in character, and still more clear that they are
not judicial. The fact that they do not fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually from one extreme to the
other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical precision
and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are
the deposed dictator and his family at whose door the travails of the country are laid and from whom
billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred freedoms
of speech and ofexpression, although couched in absolute terms, admits of limits and must be adjusted to
the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707,
October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with extraordinary powers in times
of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep
the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House
of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return
to the Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof
of our collective adherence to uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's
power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of
compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of
abode and the right to travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the 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." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor
can we amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the official concerned and decide a matter which by
its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second
paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of
any branch or instrumentality of the government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in
turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to
check not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual bases
for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and
their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that
the return of the Marcoses at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment
has given assurances that it could handle the threats posed by particular groups. But it is the catalytic
effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the
camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously
and whimsically in determining that the return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the commander-
in-chief powers granted her by the Constitution to suppress or stamp out such violence. The State, acting
through the Government, is not precluded from taking pre- emptive action against threats to its existence
if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is
the essence of the duty of government. The preservation of the State the fruition of the people's
sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the
Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant
ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit
of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years and lead to total economic collapse. Given what is
within our individual and common knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our well-considered opinion 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 poses a serious threat to national interest and welfare and in
prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J ., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . .
. Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not
handled properly."
1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories of
law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever they may
be called, the fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact
on national peace and order in these admittedly critical times, said question cannot be withdrawn from the
competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall the series of destabilizing actions attempted by
the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath
to realize this. The most publicized of these offensives is the Manila Hotel incident which occurred barely
five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300
loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the
Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The
public disorder and peril to life and limb of the citizens engendered by this event subsided only upon the
eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels
attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to
enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as an
opportunity by other enemies of the State, such as the Communist Party of the Philippines and the NPA'S,
the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the government.
Certainly, the state through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is
one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of the
Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a realization
of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J ., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning.
The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom
for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are
interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks
of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not
of power. Mr. Marcos is insensate and would not live if separated from the machines which have taken
over the functions of his kidneys and other organs. To treat him at this point as one with full panoply of
power against whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to deny him his right to
come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the
military was able to readily quell, the respondents have not pointed to any grave exigency which permits
the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds of
national security and public safety is vested by the Constitution in the President alone. The determination
should not be questioned before this Court. The President's finding of danger to the nation should be
conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it means 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
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 Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L.
Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which identifies it as essentially a function of the
separation of powers. 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 potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous.
Neither should we validate a roving commission allowing public officials to strike where they please and
to override everything which to them represents evil. The entire Government is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national security
or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a serious
attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for
his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are
also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his
family should be permitted to return to the Philippines and that such a return would deprive his fanatic
followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and this
obviously includes the right to travelout of or back into the Philippines, cannot be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a basis to bar their coming
home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the President
and Congress included, are sworn to participate. Significantly, the President herself has stated that the
Court has the last word when it comes to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility
or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the dissolution of Congress
and the exercise by the President of legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is
indeed poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should not and is
not allowed to indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power 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
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least
two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We
are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide.
Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice. The
vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a
closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon
judicial notice of the implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to
national security and public safety will arise if Mr. Marcos and his family are allowed to return to the
Philippines. It was only after the present petition was filed that the alleged danger to national security and
public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself
limits the reason for the ban Marcos policy to (1) national welfare and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment
at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme
Court decisions do not have to be popular as long as they follow the Constitution and the law. The
President's original position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the
President is reported to have stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years" in justifying her firm refusal
to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated
with national security or public order. They are too generic and sweeping to serve as grounds for the
denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired
except on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot be
negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has suggested
that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the
country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student
groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The
alleged confluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state that the situation
threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of
national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies
may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno
Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will
be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a
situation where it does not apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected eradication of the Communist
threat. There would be other serious problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of
the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum, is
too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration.
Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in the interest of national
security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply
its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing
else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines
to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must be more preferred than any other aspect of the right to
travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr.,
Jovito Salonga, and scores of other "undesirables" and "threats to national security" during that
unfortunate period which led the framers of our present Constitution not only to re-enact but to strengthen
the declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedom
loving and humane regime. I regret that the Court's decision in this case sets back the gains that our
country has achieved in terms of human rights, especially human rights for those whom we do not like or
those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators
who were barred by their successors from returning to their respective countries. There is no showing that
the countries involved have constitutions which guarantee the liberty of abode and the freedom to travel
and that despite such constitutional protections, the courts have validated the "ban a return" policy.
Neither is it shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of the
writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J ., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and die
in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving of the
very liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve
it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii
(which may depend on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was
true that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of
total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of abode
that his adversary invoked. These rights are guaranteed by the Constitution to all individuals, including
the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of
every stripe.
I vote to grant the petition.
PARAS, J ., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his
own country exceptonly if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family be
under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of his
family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J ., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context, the
issue is clearly justiciable involving, as it does, colliding assertions of individual right and governmental
power. Issues of this nature more than explain why the 1986 Constitutional Commission, led by the
illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new
provision on the power of Judicial Review, viz:
Judicial power 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
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The
power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e.,
the right to return to the country.
1
Have the respondents presented sufficient evidence to offset or
override the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown
to the Court sufficient factual bases and data which would justify their reliance on national security and
public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as
a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by
the respondents, including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual
return, to this country. The Court, in short, should not accept respondents' general apprehensions,
concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights.
2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right
to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant
3
hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice which
falls short of international law or standards.
4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly
yield thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe that
it is one case where the human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities; worse, the Court
neglects its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and demandable duty to
the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the
right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time,credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I
still have not found a satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors are in opposite roles,
which really makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino
to return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J ., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines."
1
I therefore
take exception to allusions
2
anent "the capacity of the Marcoses to stir trouble even from afar."
3
I have
legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity
to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:
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.
5

So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ]
6

And finally:
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
7

I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big
of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a
constitution must lay down the boundaries beyond which he's forbidden territory for state action"
8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom."
9
For if it were, indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than what it explicitly says
already ("limits prescribed by law"
10
or "upon lawful order of the court"
11
the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or
(2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health.
12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the
interest of national security, public safety, or public health.
13
Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones.
14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .
15
The President is out of
the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
16
and foreign
affairs;
17
the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should
the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.
18

That the President "has the obligation under the Constitution to protect the people ... "
19
is an obligation
open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from
Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of
martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of
its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties.
20

As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has
been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions that
as far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace.
21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence"
22
is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart.
23

II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because
of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was held
incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August
14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano
Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering "
24
in the midst of the distribution of Ang Demokrasya Sa Pilipinas
(Democracy In the Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman
Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the
human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to
take the events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos'
return not because I have a score to settle with him. Ditto's death or my arrest are scores that can not be
settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and
the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and
by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a democratic framework,
there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.


Separate Opinions
FERNAN, C.J ., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups. . .
. Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not
handled properly."
1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories of
law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they may
be called, the fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact
on national peace and order in these admittedly critical times, said question cannot be withdrawn from the
competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall the series of destabilizing actions attempted by
the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's aftermath
to realize this. The most publicized of these offensives is the Manila Hotel incident which occurred barely
five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters, backed by 300
loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan converged at the
Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the Philippines. The
public disorder and peril to life and limb of the citizens engendered by this event subsided only upon the
eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels
attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air
Force Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to
enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as an
opportunity by other enemies of the State, such as the Communist Party of the Philippines and the NPA'S,
the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the government.
Certainly, the state through its executive branch has the power, nay, the responsibility and obligation, to
prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is
one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of the
Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a realization
of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.
GUTIERREZ, JR., J ., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning.
The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom
for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are
interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks
of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not
of power. Mr. Marcos is insensate and would not live if separated from the machines which have taken
over the functions of his kidneys and other organs. To treat him at this point as one with full panoply of
power against whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to deny him his right to
come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the
military was able to readily quell, the respondents have not pointed to any grave exigency which permits
the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds of
national security and public safety is vested by the Constitution in the President alone. The determination
should not be questioned before this Court. The President's finding of danger to the nation should be
conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
x x x x x x x x x
It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it means 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.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
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 Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.
The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L.
Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:
It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which Identifies it as essentially a function of the
separation of powers. 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 potentiality of embarrassment from multifarious pronouncements by various departments on one
question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous.
Neither should we validate a roving commission allowing public officials to strike where they please and
to override everything which to them represents evil. The entire Govern ment is bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national security
or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a serious
attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for
his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are
also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his
family should be permitted to return to the Philippines and that such a return would deprive his fanatic
followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and this
obviously includes the right to travelout of or back into the Philippines, cannot be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a basis to bar their coming
home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the President
and Congress included, are sworn to participate. Significantly, the President herself has stated that the
Court has the last word when it comes to constitutional liberties and that she would abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility
or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest and
detention of "enemies of the State" without charges being filed against them, the dissolution of Congress
and the exercise by the President of legislative powers, the trial of civilians for civil offenses by military
tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is
indeed poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should not and is
not allowed to indulge in such a persiflage. We are bound by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power 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
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least
two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We
are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.
This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide.
Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice. The
vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a
closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.
There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon
judicial notice of the implications of a Marcos return to his home to buttress a conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present danger to
national security and public safety will arise if Mr. Marcos and his family are allowed to return to the
Philippines. It was only after the present petition was filed that the alleged danger to national security and
public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself
limits the reason for the ban Marcos policy to-41) national welfare and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents' Comment
at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety. The
President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme
Court decisions do not have to be popular as long as they follow the Constitution and the law. The
President's original position "that it is not in the interest of the nation that Marcos be allowed to return at
this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989, the
President is reported to have stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years" in justifying her firm refusal
to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated
with national security or public order. They are too generic and sweeping to serve as grounds for the
denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired
except on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot be
negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has suggested
that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the
country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student
groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The
alleged confluence of NPAS, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state that the situation
threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of
national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies
may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno
Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will
be tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a
situation where it does not apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected eradication of the Communist
threat. There would be other serious problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of
the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum, is
too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration.
Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in the interest of national
security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give
reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply
its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing
else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines
to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in the
Philippines. If at all, the right to come home must be more preferred than any other aspect of the right to
travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno Aquino, Jr.,
Jovito Salonga, and scores of other "undesirables" and "threats to national security" during that
unfortunate period which led the framers of our present Constitution not only to re-enact but to strengthen
the declaration of this right. Media often asks, "what else is new?" I submit that we now have a freedom
loving and humane regime. I regret that the Court's decision in this case sets back the gains that our
country has achieved in terms of human rights, especially human rights for those whom we do not like or
those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators
who were barred by their successors from returning to their respective countries. There is no showing that
the countries involved have constitutions which guarantee the liberty of abode and the freedom to travel
and that despite such constitutional protections, the courts have validated the "ban a return" policy.
Neither is it shown that the successors of the listed dictators are as deeply committed to democratic
principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of the
writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J ., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in
his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt and undeserving of the very
liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we resolve
it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii
(which may depend on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i. that it had not acted
arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the information
expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was
true that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of
total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of abode
that his adversary invoked. These rights are guaranteed by the Constitution to all individuals, including
the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of
every stripe.
I vote to grant the petition.
PARAS, J ., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his
own country exceptonly if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family be
under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of his
family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.
PADILLA, J ., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context, the
issue is clearly justiciable involving, as it does, colliding assertions of individual right and governmental
power. Issues of this nature more than explain why the 1986 Constitutional Commission, led by the
illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new
provision on the power of Judicial Review, viz:
Judicial power 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
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government. Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The
power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e.,
the right to return to the country.
1
Have the respondents presented sufficient evidence to offset or
override the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown
to the Court sufficient factual bases and data which would justify their reliance on national security and
public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as
a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed by
the respondents, including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual
return, to this country. The Court, in short, should not accept respondents' general apprehensions,
concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific,
clear, demandable, and enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights.
2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right
to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant
3
hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice which
falls short of international law or standards.
4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly
yield thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe that
it is one case where the human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities; worse, the Court
neglects its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and demandable duty to
the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly defend the
right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time,credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I
still have not found a satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors are in opposite roles,
which really makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case-
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;
2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a
Filipinoto return should be denied him. All we have are general conclusions of "national security" and
"public safety" in avoidance of a specific demandable and enforceable constitutional and basic human
right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J ., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines."
1
I therefore
take exception to allusions
2
anent "the capacity of the Marcoses to stir trouble even from afar."
3
I have
legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity
to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:
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.
5

So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ]
6

And finally:
To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].
7

I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big
of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a
constitution must lay down the boundaries beyond which he's forbidden territory for state action"
8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom."
9
For if it were, indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than what it explicitly says
already ("limits prescribed by law"
10
or "upon lawful order of the court"
11
the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or
(2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health.
12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the
interest of national security, public safety, or public health.
13
Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones.
14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .
15
The President is out of
the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
16
and foreign
affairs;
17
the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should
the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.
18

That the President "has the obligation under the Constitution to protect the people ... "
19
is an obligation
open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from
Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of
martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of
its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties.
20

As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has
been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions that
as far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace.
21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence"
22
is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart.
23

II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because
of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was held
incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week in
detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August
14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano
Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering "
24
in the midst of the distribution of Ang Demokrasya Sa Pilipinas
(Democracy In the Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman
Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the
human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to
take the events at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos'
return not because I have a score to settle with him. Ditto's death or my arrest are scores that can not be
settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and
the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and
by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a democratic framwork,
there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.

G.R. No. 83216 September 4, 1989
TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. MASTURA,
TRINIDAD A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA CRUZ, TRINIDAD M.
DOMINGO, MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET AL., petitioners,
vs.
THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND OFFICES (C.A.),
COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE HOUSE OF
REPRESENTATIVES, ET AL., respondents.

BIDIN, J .:
This is a special civil action for prohibition and mandamus with injunction seeking to compel respondent
Commission on Appointments to allow petitioner Teresita Quintos-Deles to perform and discharge her
duties as a member of the House of Representatives representing the Women's Sector and to restrain
respondents from subjecting petitioner's appointment to the confirmation process.
The antecedent facts which gave rise to this petition are as follows:
On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the President
pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the Constitution.
Executive Secretary Catalino Macaraig, Jr. transmitted by letter, also dated April 6,1988 (Annex L) the
appointment of the said sectoral representatives to Speaker Ramon Mitra, Jr. as follows:
April 6, 1988
Hon. Ramon V. Mitra, Jr.
Speaker, House of Representatives
Quezon City
S i r:
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, the
President has appointed the following persons to the seats reserved for sectoral representatives in
paragraph (1), Section 5 of Article VI of the Constitution:
1. Teresita Quintos-Deles -Women
2. Al Ignatius G. Lopez Youth
3. Bartolome Arteche -Peasant
4. Rey Magno Teves -Urban Poor
Copies of their appointments are enclosed.
With best wishes.
Very truly yours,
(SGD.) CATALINO MACARAIG JR
Executive Secretary
On April 18, 1988, the above-mentioned sectoral representatives were scheduled to take their oaths before
Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress after the Order of Business. However,
petitioner and the three other sectoral representatives- appointees were not able to take their oaths and
discharge their duties as members of Congress due to the opposition of some congressmen-members of
the Commission on Appointments, who insisted that sectoral representatives must first be confirmed by
the respondent Commission before they could take their oaths and/or assume office as members of the
House of Representatives. This opposition compelled Speaker Ramon V. Mitra, Jr. to suspend the oath-
taking of the four sectoral representatives.
In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on April 25,1988, a
letter dated April 11, 1988 of the President addressed to the Commission on Appointments submitting for
confirmation the appointments of the four sectoral representatives as follows:
l1 April 1988
The Honorable
Jovito R. Salonga
The Senate President and
The Members of the Commission
on Appointments
Congress of the Philippines
M a n i l a
Gentlemen:
Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the Constitution, I
hereby submit, for confirmation, the appointments of the following persons as Members of the House of
Representatives representing the sectors indicated opposite their respective names:
TERESITA QUINTOS-DELES Women
AL IGNATIUS G. LOPEZ Youth
BARTOLOME ARTECHE Peasant
REY MAGNO TEVES Urban Poor
An early confirmation of their appointments will be appreciated.
Very truly yours,
(Sgd) Corazon C. Aquino
Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V. Mitra, Jr. (Annex
V) appealed to the House of Representatives alleging, among others, that since 41 no attempt was made to
subject the sectoral representatives* already sitting to the confirmation process, there is no necessity for
such confirmation and subjection thereto of the present batch would certainly be discriminatory."
In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner that since
"President Corazon C. Aquino has submitted your appointment to the Commission on Appointments for
confirmation in a letter dated April 11, 1988, . . . the Commission on Appointments now has sole
jurisdiction over the matter."
On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend a Commission on
Appointments Committee Meeting scheduled for May 12, 1988 for the deliberation of her appointment as
sectoral representative for women (Annex DD). Petitioner sent a reply dated May 11, 1988 explaining her
position and questioning the jurisdiction of the Commission on Appointments over the appointment of
sectoral representatives (Annex EE).
In the May 12,1988 meeting of the Committee of the Constitutional Commissions and Offices of the
Commission on Appointments, chaired by Sen. Edgardo J. Angara, the Committee ruled against the
position of petitioner Deles.
Hence, this petition for prohibition and mandamus praying that respondent Commission on Appointments
be enjoined from subjecting to confirmation process the petitioner's appointment as sectoral
representative for the women's sector and as member of Congress.
Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p. 147); Ma. Iris
Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186); Hernani Panganiban, et al. (Rollo,
p. 208); Presentacion Castro, et al. (Rollo, p. 215); Sr. Teresa Dagdag, et al. (Rollo, p. 251); and Civil
Liberties Union (Rollo, p. 274).
Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral Representative for Women
by the President pursuant to Section 7, Article XVIII of the Constitution, does not require confirmation by
the Commission on Appointments to qualify her to take her seat in the House of Representatives.
The opposite view is taken by the Solicitor General in his Statement of Position (In lieu of Comment),
dated July 15,1988 (Rollo, p. 206) in this wise: "In view of the President's submission d the four sectoral
representatives, the petitioner included, to the Commission on Appointments by letter dated April 11,
1988, then confirmation by the Commission on Appointments is required."
On August 15, 1988, respondent Commission on Appointments, in addition to adopting the Statement of
Position (in lieu of Comment) submitted by the Solicitor General, likewise submitted its own Statement
of Position (In lieu of Comment) and further manifested that (1) the appointment of petitioner Deles was
not acted upon by the Commission on Appointments when Congress went into recess as required by the
Constitution; (2) the case of petitioner Deles for appointment as sectoral representative to the House of
Representatives has become moot and academic not having been finally acted upon at the close of the
session of Congress pursuant to See. 23 of the Rules of the Commission (Rollo, pp. 233-234) which reads
as follows:
Section 23. Suspension of Consideration of Nomination or Appointments to be 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
resubmitted, shall not again be considered by the Commission.
On January 31, 1989, the Court after noting the reply filed by the petitioner and the rejoinder filed by
respondents, resolved to give due course to the petition and the parties were required to submit their
respective memoranda (Rollo, p. 309). By way of manifestation and motion dated March 9, 1989 (Rollo,
p. 311), the Office of the Solicitor General adopted its statement of position (in lieu of comment) and
rejoinder as its memorandum. Petitioners and intervenor Civil Liberties Union submitted their
memoranda on March 22, 1989 and March 30, 1989, respectively. A supplemental statement of position
(in lieu of memorandum) dated March 31, 1989 was filed by respondent Commission.
The Constitution provides that the House of Representatives shall be composed of not more than two
hundred fifty (250) members, unless otherwise fixed by law, who shall be elected from the legislative
districts and those who as provided by law, shall be elected thru a party-list system. The party-list
representatives shall constitute 20% of the total number of representatives or fifty (50) seats. One-half or
twenty-five (25) of the seats allocated to party-list representatives is reserved for sectoral representatives.
The reservation is limited to three consecutive terms after ratification of the 1987 Constitution. Thus,
Section 5 (1) and (2), Article VI of the 1987 Constitution provides:
SEC. 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party-list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by
law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.
Under Section 7, Article XVIII of the Constitution, the appointment of sectoral representatives is vested
upon the President until otherwise provided by law, as follows:
SEC. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the
respective sectors the seats reserved for sectoral representation in paragraph (1), Section 5 of Article VI of
this Constitution.
The issue is, whether the Constitution requires the appointment of sectoral representatives to the House of
Representatives to be confirmed by the Commission on Appointments. Section 16, Article VII of the
Constitution enumerates among others, the officers who may be appointed by the President with the
consent of the Commission on Appointments, as follows:
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.
In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article VII of the
Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section
16, Article VII require confirmation by the Commission on Appointments, as follows:
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;
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.
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
(T)he purposive intention and deliberate judgment of the framers of the 1987 Constitution (is) 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 foreseeable 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.
Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen. Jovito
Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein the Court held:
The Mison case was the first major case under the 1987 Constitution and in constructing Sec. 16, Art. VII
of the 1987 Constitution, ... 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 See. 16, Art. VII are to be reviewed
by the Commission on Appointments, namely, '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.' All other
appointments by the President are to be made without the participation of the Commission on
Appointments.
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
undubitable 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 (Sarmiento v. Mison, supra).
Nevertheless, there are appointments vested in the President in the Constitution which, by express
mandate of the Constitution, require no confirmation such as appointments of members of the Supreme
Court and judges of lower courts (Sec. 9, Art. VIII) and the Ombudsman and his deputies (Sec. 9, Art.
XI). No such exemption from confirmation had been extended to appointments of sectoral representatives
in the Constitution. Petitioner was appointed on April 6, 1988 pursuant to Art. XVIII, Section 7 and Art.
VII, Section 16, paragraph 2 of the Constitution, to wit:
6 April 1988
Madam:
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution, you are
hereby appointed MEMBER OF THE HOUSE OF REPRESENTATIVES.
By virtue hereof, you may qualify to said position furnishing this office with copies of your oath of office.
Very truly yours,
(Sgd.) CORAZON C. AQUINO
Hon. TERESITA QUINTOS-DELES
(Annex "M", Petition, Rollo, p. 108.)
The invocation of Art. XVIII, Section 7 of the Constitution as authority for the appointment of petitioner
places said appointment within the ambit of the first sentence of Section 16, Art. VII; hence, subject to
confirmation by the Commission on Appointments under the Mison doctrine. Petitioner's appointment
was furthermore made pursuant to Art. VII, Section 16, paragraph 2 which provides:
SEC. 16. ...
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.
The reference to paragraph 2, Section 16 of Article VII as additional authority for the appointment of
petitioner is of vital significance to the case at bar. The records show that petitioner's appointment was
made on April 6, 1988 or while Congress was in recess (March 26, 1988 to April 17, 1988); hence, the
reference to the said paragraph 2 of Section 16, Art. VII in the appointment extended to her.
Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of
petitioner is, the recognition by the President as appointing authority that petitioner's appointment
requires confirmation by the Commission on Appointments. Under paragraph 2, Section 16, Art. VII,
appointments made by the President pursuant thereto "shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress." If indeed appointments of
sectoral representatives need no confirmation, the President need not make any reference to the
constitutional provisions above-quoted in appointing the petitioner, As a matter of fact, the President in a
letter dated April 11, 1989 had expressly submitted petitioner's appointment for confirmation by the
Commission on Appointments. Considering that Congress had adjourned without respondent Commission
on Appointments having acted on petitioner's appointment, said appointment/nomination had become
moot and academic pursuant to Section 23 of the Rules of respondent Commission and "unless
resubmitted shall not again be considered by the Commission."
Petitioners further contend that nowhere in the Constitution nor in Executive Order No. 198 is mention
made of the need for petitioner's appointment to be submitted to the Commission on Appointments for
confirmation. Executive Order No. 198 promulgated on June 18, 1687 before the convening of Congress,
is denominated: "Providing for the Manner of Nomination and Appointment of Sectoral Representatives
to the House of Representatives." We agree with the submission of respondent Commission that the
provisions of Executive Order No. 198 do not deal with the manner of appointment of sectoral
representatives. Executive Order No. 1 98 confines itself to specifying the sectors to be represented, their
number, and the nomination of such sectoral representatives.
The power of the President to appoint sectoral representatives remains directly derived from Section 7,
Article XVIII of the Constitution which is quoted in the second "Whereas' clause of Executive Order No.
198. Thus, appointments by the President of sectoral representatives require the consent of the
Commission on Appointments in accordance with the first sentence of Section 16, Art. VII of the
Constitution. More to the point, petitioner Deles' appointment was issued not by virtue of Executive Order
No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art. XVIII, Section 7 of the Constitution
which require submission to the confirmation process.
WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is hereby
DISMISSED for lack of merit. Without pronouncement as to costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

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 inGold 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.
5

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.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other
public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
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
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.
xxx xxx xxx
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.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

G.R. No. L-46570 April 21, 1939
JOSE D. VILLENA, petitioner,
vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J .:
This is an original action of prohibition with prayer for preliminary injunction against the Secretary of the
Interior to restrain him and his agents from proceeding with the investigation of the herein petitioner, Jose
D. Villena, mayor of Makati, Rizal, which was scheduled to take place on March 28, 1939, until this case
is finally determined by this court. The respondent was required to answer, but the petition for
preliminary injunction was denied.
It appears that the Division of Investigation of the Department of Justice, upon the request of the
Secretary of the Interior, conducted an inquiry into the conduct of the petitioner, as a result of which the
latter was found to have committed bribery, extortion, malicious abuse of authority and unauthorized
practice of the law profession. The respondent, therefore, on February 8, 1939, recommended to the
President of the Philippines the suspension of the petitioner to prevent possible coercion of witnesses,
which recommendation was granted, according to the answer of the Solicitor-General of March 20, 1939,
verbally by the President on the same day. The Secretary of the Interior suspended the petitioner from
office on February 9, 1939, and then and thereafter wired the Provincial Governor of Rizal with
instruction that the petitioner be advised accordingly. On February 13, 1939, the respondent wrote the
petitioner a letter, specifying the many charges against him and notifying him of the designation of
Emiliano Anonas as special investigator to investigate the charges. The special investigator forthwith
notified the petitioner that the formal investigation would be commenced on February 17, 1939, at 9 a. m.,
but due to several incidents and postponements, the same had to be set definitely for March 28, 1939.
Hence, the petition for preliminary injunction referred to in the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to suspend and much less to prefer by
himself administrative charges against the petitioner and decide also by himself the merits of the charges
as the power to suspend municipal elective officials and to try and punish them for misconduct in office
or dereliction of duty is lodged in some other agencies of the government;
(2) That the acts of the respondent in suspending the petitioner from office and in preferring by himself
charges against him and in designating a special investigator to hear the charges specified in Exhibit A are
null and void for the following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner, has exercised control over local
governments when that power has been taken away from the President of the Philippines by the
Constitution for the to abrogate and the power to abrogate means the power to power to control has been
interpreted to include the power usurp and the power to usurp necessarily includes the power to destroy;
(b) Because even if the respondent Secretary of the Interior has power of supervision over local
governments, that power, according to the constitution, must be exercised in accordance with the
provisions of law and the provisions of law governing trials of charges against elective municipal officials
are those contained in section 2188 of the Administrative Code as amended. In other words, the Secretary
of the Interior must exercise his supervision over local governments, if he has that power under existing
law, in accordance with section 2188 of the Administrative Code, as amended, as the latter provision
govern the procedure to be followed in suspending and punishing elective local officials while section 79
(C) of the Administrative Code is the general law which must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an arbitrary power by converting
himself into a complainant and at the same time judge of the charges he has preferred against the
petitioner;
(d) Because the action of the respondent Secretary of the Interior is not based on any sworn statement of
any private person or citizen of this government when section 2188 of the Administrative Code requires
the complaint against elective municipal officials to be under oath in order to merit consideration by the
authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent restraining him, his agents, attorneys
and all persons acting by virtue of his authority from further proceeding against the petitioner until this
case is finally determined by this court;
(b) To declare, after the hearing of this petition, that the respondent is without authority or jurisdiction to
suspend the petitioner from the office of mayor of Makati and to order his immediate reinstatement in
office;
(c) To declare that the respondent has no authority to prefer charges against the petitioner and to
investigate those charges for the grant him that power the respondent would be acting as prosecutor and
judge of the case of his own creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised Administrative Code expressly empowers
the respondent as Secretary of the Interior to "order the investigation of any act or conduct of any person
in the service of any bureau or office under his department" and in connection therewith to "designate an
official or person who shall conduct such investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked by the petitioner, empowers
the provincial governor to `receive and investigate complaints made under oath against municipal officers
for neglect of duty, oppression, corruption or other form of maladministration of office', said section does
not preclude the respondent as Secretary of the Interior from exercising the power vested in him by
section 79 (C) in relation with section 86 of the Revised Administrative Code; and that, moreover, said
section 2188 must be read in relation with section 37 of Act No. 4007, known as the Reorganization Law
of 1932; (Par. 4 [b].)
3. That at the commencement of the investigation the petitioner did not question the power or jurisdiction
of the Department of the Interior to investigate the administrative charges against him but merely
contended that the filing of said charges was not in accordance with law for the reason that they did not
bear the oaths of the complainants; (Par. 5.)
4. That the authority of a department head order the investigation of any act or conduct of any person
under his department necessarily carries with it by implication the authority to take such measures as he
may deem necessary to accomplish the purpose of the investigation, such as by suspending the officer
under investigation to prevent coercion of witnesses; and that, furthermore, the suspension from office of
the herein petitioner by the respondent was authorized by the Chief Executive, who is empowered by
section 64 (B) of the Administrative Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would warrant the granting of the writ of
preliminary injunction under section 164 of the Code of Civil Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to restrain public officers by
injunction from performing any official act which they are by law required to perform, or acts which are
not in excess of the authority and discretion reposed in them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal authority of the Secretary of
the Interior (a) to order an investigation, by a special investigation appointed by him, of the charges of
corruption and irregularity brought to his attention against the mayor of the municipality of Makati,
Province of Rizal, who is the petitioner herein, and (b) to decree the suspension of the said mayor pending
the investigation of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision over all bureaus and offices
under his jurisdiction and may, any provision of existing law to the contrary notwithstanding, repeal or
modify the decisions of the chiefs of said bureaus of offices when advisable in the public interest.
The Department Head may order the investigation of any act conduct of any person in the service of any
bureau of office under his department and in connection therewith may appoint a committee or designate
an official or person who shall conduct such investigations, and such committee, official, or person may
summon, witness by subpoena and subpoena duces tecum, administer oath and take testimony relevant to
the investigation.
The above section speaks, it is true, of direct control, direction, and supervision over bureaus and offices
under the jurisdiction of the Secretary of the Interior, but this section should be interpreted in relation to
section 86 of the same Code which grants to the Department of the Interior "executive supervision over
the administration of provinces, municipalities, chartered cities and other local political subdivisions." In
the case of Planas vs. Gil (37 Off. Gaz., 1228), we observed that "Supervision is not a meaningless thing.
It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into
facts and conditions in order to render the power real and effective. If supervision is to be conscientious
and rational, and not automatic and brutal, it must be founded upon a knowledge of actual facts and
conditions disclosed after careful study and investigation." The principle there enunciated is applicable
with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority to order the investigation
of the charges against the petitioner and to appoint a special investigator for that purpose.
As regards the challenged power of the Secretary of the Interior to decree the suspension of the herein
petitioner pending an administrative investigation of the charges against him, the question, it may be
admitted, is not free from difficulties. There is no clear and express grant of power to the secretary to
suspend a mayor of a municipality who is under investigation. On the contrary, the power appears lodged
in the provincial governor by section 2188 of the Administrative Code which provides that "The
provincial governor shall receive and investigate complaints made under oath against municipal officers
for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by
final judgment of any crime involving moral turpitude. For minor delinquency he may reprimand the
offender; and if a more severe punishment seems to be desirable he shall submit written charges touching
the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by
registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending
action by the board, if in his opinion the charge be one affecting the official integrity of the officer in
question. Where suspension is thus effected, the written charges against the officer shall be filed with the
board within five days." The fact, however, that the power of suspension is expressly granted by section
2188 of the Administrative Code to the provincial governor does not mean that the grant is necessarily
exclusive and precludes the Secretary of the Interior from exercising a similar power. For instance,
counsel for the petitioner admitted in the oral argument that the President of the Philippines may himself
suspend the petitioner from office in virtue of his greater power of removal (sec. 2191, as amended,
Administrative Code) to be exercised conformably to law. Indeed, if the President could, in the manner
prescribed by law, remove a municipal official, it would be a legal incongruity if he were to be devoid of
the lesser power of suspension. And the incongruity would be more patent if, possessed of the power both
to suspend and to remove a provincial official (sec. 2078, Administrative Code), the President were to be
without the power to suspend a municipal official. Here is, parenthetically, an instance where, as counsel
for petitioner admitted, the power to suspend a municipal official is not exclusive. Upon the other hand, it
may be argued with some degree of plausibility that, if the Secretary of the Interior is, as we have
hereinabove concluded, empowered to investigate the charges against the petitioner and to appoint a
special investigator for that purpose, preventive suspension may be a means by which to carry into effect
a fair and impartial investigation. This is a point, however, which, for the reason hereinafter indicated, we
do not have to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the Reorganization Law of 1932,
by providing, "the provisions of the existing law to the contrary notwithstanding," that "whenever a
specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or
service, the same shall be understood as also conferred upon the proper Department Head who shall have
authority to act directly in pursuance thereof, or to review, modify or revoke any decision or action of said
chief of bureau, office, division or service", should be interpreted to concede to the Secretary of the
Interior the power to suspend a mayor of a municipality. The argument is so generally sweeping that,
unless distinctions are made, the effect would be the complete abrogation at will of the powers of
provincial and municipal officials even in corporate affairs of local governments. Under the theory
suggested by the Solicitor-General, the Secretary of the Interior could, as observed by able counsel for the
petitioner, enter into a contract and sign a deed of conveyance of real property in behalf of a municipality
against the opposition of the mayor thereof who is the local official authorized by law to do so (sec. 2196,
Revised Administrative Code), or in behalf of a province in lieu of the provincial governor thereof (sec
2068, Ibid.), and otherwise exercise powers of corporate character mentioned in sections 2067 and 2175
of the Revised Administrative Code and which are lodged in the corresponding provincial and municipal
officials. And if the power of suspension of the Secretary of the Interior is to be justified on the plea that
the pretended power is governmental and not corporate, the result would be more disastrous. Then and
thereunder, the Secretary of the Interior, in lieu of the mayor of the municipality, could directly veto
municipal ordinances and resolutions under section 2229 of the Revised Administrative Code; he could,
without any formality, elbow aside the municipal mayor and himself make appointments to all non-
elective positions in the municipal service, under section 2199 of the Revised Administrative Code; he
could, instead of the provincial governor, fill a temporary vacancy in any municipal office under
subsection (a), section 2188, as amended, of the said Code; he-could even directly appoint lieutenants of
barrios and wrest the authority given by section 2218 of the Revised Administrative Code to a municipal
councilor. Instances may be multiplied but it is unnecessary to go any further. Prudence, then, dictates
that we should hesitate to accept the suggestion urged upon us by the Solicitor-General, especially where
we find the path indicated by him neither illuminated by the light of our own experience nor cemented by
the virtuality of legal principles but is, on the contrary, dimmed by the recognition however limited in our
own Constitution of the right of local self-government and by the actual operation and enforcement of the
laws governing provinces, chartered cities, municipalities and other political subdivisions. It is not any
question of wisdom of legislation but the existence of any such destructive authority in the law invoked
by the Government that we are called upon to pass and determine here.
In the deliberation of this case it has also been suggested that, admitting that the President of the
Philippines is invested with the authority to suspend the petitioner, and it appearing that he had verbally
approved or at least acquiesced in the action taken by the Secretary of the Interior, the suspension of the
petitioner should be sustained on the principle of approval or ratification of the act of the Secretary of the
Interior by the President of the Philippines. There is, to be sure, more weight in this argument than in the
suggested generalization of section 37 of Act No. 4007. Withal, at first blush, the argument of ratification
may seem plausible under the circumstances, it should be observed that there are certain prerogative acts
which, by their very nature, cannot be validated by subsequent approval or ratification by the President.
There are certain constitutional power and prerogatives of the Chief Executive of the Nation which must
be exercised by him in person and no amount of approval or ratification will validate the exercise of any
of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus
and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of
mercy (par. 6, sec. 11, idem). Upon the other hand, doubt is entertained by some members of the court
whether the statement made by the Secretary to the President in the latter's behalf and by his authority that
the President had no objection to the suspension of the petitioner could be accepted as an affirmative
exercise of the power of suspension in this case, or that the verbal approval by the President of the
suspension alleged in a pleading presented in this case by the Solicitor-General could be considered as a
sufficient ratification in law.
After serious reflection, we have decided to sustain the contention of the government in this case on the
board proposition, albeit not suggested, that under the presidential type of government which we have
adopted and considering the departmental organization established and continued in force by paragraph 1,
section 12, Article VII, of our Constitution, 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. (Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167: 7
Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S.
[1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey vs. Chapman [1880], 101 U. S.,
755; 25 Law. ed., 915: Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of qualified
political agency in this and similar cases would result in the assumption of responsibility by the President
of the Philippines for acts of any member of his cabinet, however illegal, irregular or improper may be
these acts. The implications, it is said, are serious. Fear, however, is no valid argument against the system
once adopted, established and operated. Familiarity with the essential background of the type of
government established under our Constitution, in the light of certain well-known principles and practices
that go with the system, should offer the necessary explanation. 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 principles 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" (7 Writings, Ford ed., 498), and, in the language of Attorney-General Cushing (7 Op.,
Attorney-General, 453), "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" (Myers vs. United
States, 47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). 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. It is therefore logical that he, the President, should be answerable for
the acts of administration of the entire Executive Department before his own conscience no less than
before that undefined power of public opinion which, in the language of Daniel Webster, is the last
repository of popular government. These are the necessary corollaries of the American presidential type
of government, and if there is any defect, it is attributable to the system itself. We cannot modify the
system unless we modify the Constitution, and we cannot modify the Constitution by any subtle process
of judicial interpretation or constitution.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
Avancea, C. J., Diaz, and Concepcion, JJ., concur.